Steal This Idea: The Arguments For and Against Software Patents

May 17th, 2013 | Articles, Industry News, Job Search | No Comments »

software patents

Since the 1960s software engineers, lawyers, and academics have been arguing over the pros and cons of software patents, and to this day no resolution has been reached as to how to legally secure intellectual property rights of formulated lines of code. With the inception of mobile applications utilized by smart phone and tablets – made by software giants like Apple, Microsoft, and Motorola – patent-eligibility once again finds itself center stage in nationwide and international debate.

The tangled web we have weaved

The trouble is that, while computer hardware is specifically covered under Title 35 of the United States Code, software programs and applications remain outside of the categorical definition of a patent. While software patents do indeed exist, their current definitions (I use the plural in this sense because it is virtually impossible to find a definition written in actual law) have created chaos for software companies. These companies, both large and small, struggle to maintain current and former rights to any number of patents that they deem necessary to profit from the application of the very programs they have developed.

This has led to a virtual scrum of software companies scrambling to maintain intellectual rights to their software while trying not to infringe on the patents of other developers. These patents cost software developers an estimated $25-30 billion dollars a year, and billions more are spent on litigations and settlements resulting from the violation (whether intentional or not) of rights reserved to competing companies.

Competing ideologies

The moral gravity of the situation, as well as the substantial risk of severe profit loss or gain, has bred two very opposing arguments over the existence of software patents. While many claim the patents impede development of future technology, and therefore should be abolished, others maintain that they provide necessary protections to innovative minds, and should therefore be maintained or amended to better protect intellectual rights to property.

The arguments against patents

Many lawyers and academics argue that software patents should be abolished because they stifle innovation. If programs are merely ideas, then they are not patentable. Many others just hold the belief that the billions of dollars spent by software companies on accumulating, avoiding, and violating patents could be better put to use in creating new and innovative software advances.

Michelle Boldrin and David K. Levine published a case against patents earlier in 2013 wherein they highlight the lack of empirical evidence to suggest that patents have any positive effect on innovation. They instead assert that history shows the eruptive growth of most industries, as well as the innovation of technology that comes with it, is a derivation of the competitive environment.

Equating software patents to awarding monopolies to favored individuals, Boldrin and Levine call for the abolishment, or at the very least severe reform of, what they see as inhibitors to innovation and free competition.

The arguments for patents

On the opposite end of the debate sit people like Martin Goetz, the first man to receive a software patent in 1968 for an improvised data sorting algorithm he developed. Over the years Goetz has emerged as one of the leading voices for the preservation of software patents.

Goetz disagrees with the definition of programs as mere ideas. He claims that programs, although containing ideas on processes (e.g. how to encrypt data), are still components on a machine, and are therefore covered under the current patent laws.

Goetz agrees that many of the software patents that have been granted over the years should not have been given. He argues that although there are problems with the current software patent standards, reforms, rather than abolishment, should be the focus of the debate.

The problem with copyrights

The problem Goetz sees with the abolishment of patents is that copyright protection really offers no protection to software at all. He states that a copyright really only “stops someone from literally copying your code. It in no way protects any inventive concept, including ideas, program logic, algorithms, systems, methods, concepts, or layouts”.

Common ground

The only point that both sides seem to agree on is that the current laws regarding software patenting need to be revised. The billions spent by software companies on and avoiding litigation is equitable to industrial waste. Patent accumulation and hoarding has led to the creation of companies or people that exist solely to amass patents for financial gain.

These entities, aptly dubbed “Patent trolls”, buy up as many patents on software as they can with no intention of innovating, using, or distributing the software. The purpose of accumulating these patents is to aggressively pursue litigation against any company that crosses the web of program rights they own, and that is how patent profiteering is done. Since there is nothing illegal about what these companies do there is no way to avoid costly settlements or litigation. Software companies must pay the intellectual property rights tolls for crossing the bridges of these patent trolls.

Where does it end?

As of now there doesn’t seem to be any end in sight for the current software patent predicament, and the problem has only gotten worse as lower courts have intervened and created rules and regulations of their own, obscuring an already murky set of patent laws. What can be said is that as technology becomes more digital than hardware, especially with Cloud systems replacing material data storage, it may be wise to take a Minor in Legal Studies alongside your B.S. in Computer Science.

By Kevin Withers

See Boldrin and Levine’s full case here
See more from Martin Goetz here
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