Patents: a reluctant stance
When software first began to be productized, I followed the thinking of some who believed that allowing software patents was part of the acknowledgment that software had real value, a somewhat challenging notion 25 years ago.
More recently, I've seen many in the European Union protest in an effort to bar software patents from their community, and I've paid attention to the Free Software Foundation and other open source software groups who have voiced similar concerns (the FSF for many a year).
Last August, I saw a Fast Company blog called Patent Happy that referenced a New York Times article. In the past, you could look at a product and see the numbers of the patented devices it contained (typically a very few) printed on the exterior. It was easy to know what you needed to avoid doing if you wanted to compete. Today, with a plethora of software patents, it would seem to take major research to figure out what's covered by existing patents, and it takes legal help to procure licensing, if it's available.
I've been thinking about this posting ever since, and today's notice of a draft version 3 of the GPL prompted me to dust this off and post it.
So, what's a good policy? Patents are designed to foster commerce by giving protection to those who invest in product development so they stand a chance of recouping their investment through profits. That sounds like a good idea, and I do think those who've made major investments in development and tooling should have a bit of freedom from being copied the minute their products hit the street.
There are several things that concern me about software patents, though. First, they're more like intellectual statements rather than physical objects, and those traditionally weren't patentable.
Second, the presence of software patents raises the barrier to any new software product development. In the old days, products were simpler, and it was easier to do patent searches to determine whether a product might infringe on another patent. With software patents being granted on both small- and large-scale software developments, it takes a significant investment to determine whether a product infringes, an investment that can slow the entry of new companies and new products.
Third, some patents cover things we'd like to see commonly shared. If there's a particular method for sharing data or interacting with a computer, we'd probably be better off if those were common across applications, and patents and licensing just encourage others to find ways to carry out those functions that have the primary feature that they've not yet been patented.
Fourth, we seem to have moved the focus even more from patents as a protection of a company's right to compete towards patents as an offensive weapon to extract licensing fees (or as a defensive weapon to be used when another company seeks licensing fees and doesn't realize they're also infringing). A bit of searching can turn up examples.
Here's a half-baked idea that I invite you to help me cook.
- If possible, eliminate software patents, and let products stand on their own in the market. If that's not possible, seek ways to allow patents only for truly breakthrough software innovations that took significant investment in development.
- If you include patented technology in a product, be it hardware or software, require that the "About" menu selection or some equally accessible information lets you see a list of all included patents, with hyperlinks directly to those patents on the appropriate patent office sites (in the USA, the United States Patent and Trademark Office; in Europe, the European Patent Office; in Japan, the Japan Patent Office—you can search for the rest).
- Let patents expire in two years (or some other short period) after being granted if they aren't reduced to practice in a shipping, commercial product.
This is my reluctant stance, because I know companies need some intellectual property protection in certain cases. The current situation with software patents seems troubling to me, though, and seems destined to reduce our resilience and adaptibility as a society. I welcome your thoughts to help me (and to help society) think through this issue.