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?

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.

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.

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.

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.