Software Patents from the Bottom-Up

The law is always a game for insiders, but patent law is almost in a class by itself. Debates about patent law are dominated by practicing patent attorneys and law professors (who are often former patent attorneys). This is perhaps unsurprising because patent law is mind-numbingly esoteric. But it’s also a real problem. There’s a massive gap between how the patent system looks to the patent bar, which is intimately familiar with it, and how it looks to the rest of the world.

117048243_7cc6bb0b87One consequence of this is that arguments about patent policy tend to focus on the minutia of legal doctrine, with relatively little attention paid to the concerns of the innovators whose efforts the patent system is supposed to encourage. This problem is especially severe in the software industry, where patents are intensely controversial. I’ve talked to a number of patent scholars with a legal background, and they’re consistently baffled by the intensity of many programmers’ hostility toward software patents.

In a new piece for Cato’s TechKnowledge newsletter, I try to explain many geeks’ hostility to software patents with an analogy:

Imagine the outcry if the courts were to legalize patents on English prose. Suddenly, you could get a “literary patent” on novels employing a particular kind of plot twist, on news stories using a particular interview technique, or on legal briefs using a particular style of argumentation. Publishing books, papers, or articles would expose authors to potential liability for patent infringement. To protect themselves, writers would be forced to send their work to a patent lawyer before publication and to re-write passages found to be infringing a literary patent.

Most writers would regard this as an outrageous attack on their freedom. Some people might argue that such patents would promote innovation in the production of literary techniques, but most writers would find that beside the point. It’s simply an intolerable burden to expect writers to become experts on the patent system, or to hire someone who is, before communicating their thoughts in written form.

Over the last 15 years, computer programmers have increasingly faced a similar predicament. We use programming languages to express mathematical concepts in much the same way that authors use the English language to express other types of ideas. Unfortunately, the recent proliferation of patents on software has made the development and use of software legally hazardous.

2976875100_90ec499bb9I think patent scholars would do well to pay a lot more attention to how the patent system is experienced by individuals who are required to obey it, rather than focusing on abstract doctrinal questions that are of interest only to patent attorneys. We might call this a bottom-up perspective on patent law. For example, I spent the summer developing software for Dancing Mammoth, the company that also hosts this blog. If Dancing Mammoth were really serious about avoiding patent infringement, it probably should have hired a patent lawyer to verify that each line of code I wrote didn’t infringe one of the hundreds of thousands of software patents in existence. Obviously, this would be completely impractical, as the patent attorney’s fees would likely exceed my own salary, so like most software firms they didn’t do that.

Now, I don’t know of any patents I infringed, but as a statistical matter it’s likely that I infringed some. Fortunately, it’s pretty unlikely anyone will sue me or Dancing Mammoth for any infringement we may have committed, because there are other potential targets with much deeper pockets. But that hardly justifies this situation where everyone’s a lawbreaker but most people don’t get caught. Small firms do get sued for inadvertent software patent infringement. Laws that are virtually impossible to follow are bad laws, regardless of how infrequently they’re actually applied.

The fundamental issue is that developing software is not a capital-intensive commercial activity like many other industries that receive patent protection; it’s an expressive activity that is practiced by numerous people far outside of what is conventionally described as “the software industry.” Patent law is an incredibly complex, expensive, and hard-to-understand body of law. It should be limited to industries where the costs of hiring patent lawyers is a relatively small fraction of the costs of the underlying innovations. The pharmaceutical industry probably fits this pattern. The software industry clearly does not.

A final note: the concept of literary patents is not original to me. Richard Stallman employed the same analogy in 2005 (I discovered his version only after submitting mine, otherwise I would have included a link in the story). His take is well worth reading, as it does a great job of illustrating the kind of irrationality that crops up when patents are applied to the software industry.

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5 Responses to Software Patents from the Bottom-Up

  1. Rhayader says:

    I think the comparison to hypothetical “literary patents” is a very informative one. Unfortunately, most people I run into socially seem to have trouble accepting the idea of programming as a creative process. They see the whole thing as sort of a “black box” with predefined parameters, and don’t understand the critical thinking and problem solving involved. It’s like looking at a beautifully crafted dresser and seeing nothing but some loud tools and a little raw material.

    I would imagine (or hope, anyway) that a typical software patent lawyer might have some more appreciation for the true creativity involved, but I still think there is a bit of a cultural blind spot that causes many to misunderstand the true nature of software development.

  2. Dave W. says:

    Do you of anybody who has decided not to pursue programming because of the legal risk?

    Do you know of anyone who programmed less because of the possibility of patent infringement?

    How many programmers would Dancing Mammoth have hired this summer if software patents were abolished last year? More than they did? Fewer than they did? Exactly the same number as they did?

    These are sincere questions.

  3. Dave,

    Dancing Mammoth is a small enough firm that the chances of them getting sued is relatively small. So I doubt it had much effect on their hiring decisions. But if they started to grow, they’d have to devote significant resources to stockpiling patents and licensing the patent portfolios of larger firms. The resources required to do that comes at least in part out of firms’ R&D budgets.

    More importantly, the fundamental argument for patent law is that it increases the market incentives to creative activity. But if the costs of patent litigation in an industry exceed the positive incentives created by the patent system (which is what Meurer and Bessen’s data show for software), then the patent system as a whole might actually be discouraging innovation in that industry. The effect is diffuse enough that it’s hard to point to a specific example, but the same is true of the positive incentive effects of patents.

  4. There is no doubt that the patent system should be more accessible, less complicated, and less expensive. Inventing is creative, this is not unique to developers of software. Writers would be and have been historically disgusted by people that can pirate their writings. In the 19th century copyrights were national (like patents are today), so foreign publishers stole the works of famous authors and reproduced them in their country without paying the author. Mark Twain suffered this fate particularly at the hands of English publishers. I am sure the English publishers did not see why they should have to fuss with copyrights of American writers and vice versa. The moral point is the same with software developers who do not want to bother with those complicated patents – stealing is stealing.

    Some people believe that software should not be patentable. The arguments against software patents have a fundamental flaw. As any electrical engineer knows and software developer should know, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. Software is just a method of converting a general purpose electronic circuit (computer) into a application specific electronic circuit. As a result, to be intellectually consistent those people against software patents also have to be against patents for electronic circuits.

  5. Rhayader says:

    stealing is stealing.

    Right, but straight-up theft and piracy are pretty straightforward topics in the realm of patent law.

    It’s the subtleties that make it tough. Go back to your Mark Twain example, and to Tim’s idea of “literary patents”. Could Twain have patented a given literary device or theme? If he could, what would happen when I decided to sit down and write a book, and independently arrived at a similar theme, through the use of a similar device? I haven’t plagiarized, at least according to the commonly used definition; there is no verbatim (or summarizing) copying of Twain’s work. But, if he has claimed ownership over his creative process, my work is exposed to lawsuit.

    So yeah, it’s easy to make it illegal to pirate MatLab and upload it to a torrent site. But what about someone else developing a computational programming platform? Do they need to inspect how MatLab queried the processor, or recalled information from RAM, or interfaced with the system’s printer drivers? Are techniques like that truly “ownable”, or just part of a toolbox in the same way as allegory and character foiling are part of the writer’s toolbox?

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