The Software Patent as Land Grab

Pseudonymous blogger (and software developer) “Cog” shares my distaste for software patents:

One thing that I find extremely frustrating about many legal scholars and economists’ approach to patents it that they make two false assumptions. The first assumption is that transaction costs are acceptable, or can be made so with some modest reforms. The second assumption is that patent litigation is reasonably “precise”; i.e., if you don’t infringe on something then you’ll be able to build useful technology and bring it to market relatively unhindered. As my friend’s story shows, both of these assumptions are laughably false. I mean, just black-is-white, up-is-down, slavery-is-freedom, we-have-always-been-at-war-with-Eastasia false.

The end result is that our patent system encourages “land grab” behavior which could practically serve as the dictionary definition of rent-seeking. The closest analogy is a conquistador planting a flag on a random outcropping of rock at the tip of some peninsula, and then saying “I claim all this land for Spain”, and then the entire Western hemisphere allegedly becomes the property of the Spanish crown. This is a theory of property that’s light-years away from any Lockean notion of mixing your labor with the land or any Smithian notion of promoting economic efficiency. And yet it’s the state of the law for software patents. Your business plan can literally be to build a half-assed implementation of some straightforward idea (or, in the case of Intellectual Ventures, don’t build it at all), file a patent, and subsequently sue the pants off anybody who comes anywhere near the turf you’ve claimed. And if they do come near your turf, regardless of how much of their own sweat and blood they put into their independent invention, the legal system’s going go off under them like a land mine.

It is hard to think of a more effective mechanism for discouraging innovation in software. I mean, I suppose you could plant a plastic explosive rigged to a random number generator under the seats of every software developer, and that would be slightly worse.

This is spot-on.

This entry was posted in Uncategorized. Bookmark the permalink.

2 Responses to The Software Patent as Land Grab

  1. Timon says:

    This is the best metaphor for the patent mess I have ever heard.

  2. Brian Moore says:

    Eddie Izzard does a great (and appropriate) routine:

    “Do you have a flag?”

    I’m constantly confused by how poorly software patents turned out. Like I understand the philosophical objections and agree with them, but even if the current system were implemented sanely, it wouldn’t be that bad — in fact I don’t think anyone would particularly be complaining about it.

    All the cases you see with the “land grab”-esque methods, it seems like the majority of them are:

    1. insane claims to have invented simple, basic, obvious functionality that everyone uses — easily countered by you or me saying “look, this company was using that years ago, isn’t this prior art?”

    2. claims to some patent that the company isn’t using — how hard can it be to just reduce the “idle time” on software patents, before the judge says “I don’t think you’re really trying to use this technology, but this company over here is spending millions of dollars on it.”

    3. issues over the fact that software patents seem to be granted for functionality instead of design — in software you can make something that does exactly the same thing as something else, with the same inputs and outputs, but is written in a different language, using different algorithms and different hardware, which is very different than the inventions normal patents are designed to cover.

    4. finally, one of the key tenets of software dev is theft: you are supposed to steal other people’s ideas if they are good.

    If the people administering out software patent system had just proceeded about it in a sane manner, I don’t think we’d be having this conversation. It might still be wrong in principle, but I don’t think it would be causing such negative effects.

    I realize that this might make me fall into cog’s definition of someone who believes: “or can be made so with some modest reforms” but I’ll admit that at this point, it may not be possible. Perhaps if a dose of sanity had been injected back in the beginning, but there’s so much crazy built into the system at this point, I agree that reforms would be very hard.

Leave a Reply

Your email address will not be published.