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.

One 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.

I 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.