Paul Chiusano on software patents

Paul Chiusano reminds us why we would conceivably want software patents:

What I find irritating about all the software patent discussion is that patents are intended to benefit society - that is their purpose, "To promote the Progress of Science and useful Arts". But no one seems to want to reason about whether that is actually happening - that would mean doing things like thinking about how likely the invention was to be independely discovered soon anyway, estimating the multiplier of having the invention be in the public domain, etc. Instead we get regurgitation of this meme about making sure the little guy working in his basement gets compensated for his invention.

It's a good reminder. The point of patents is to make society better off.

The standard argument for patents requires, among other assumptions, that the patented inventions require a significant level of investment that would not otherwise occur. As Paul points out, that is not the case for software:

Software patents rarely make sense because software development requires almost no capital investment, and as a result, it is almost impossible for an individual to develop some software invention that would not be discovered by multiple other people soon in the future. Do you know of any individual or organization that is even capable of creating some software "invention" that would not be rediscovered independently anyway in the next five or ten years? I don't. No one is that far ahead of everyone else in software, precisely because there is no capital investment required and no real barriers to entry.

I agree.

I have read many posts where people try to fine tune software patents to make them less awful. I wish we could instead start by considering the more fundamental issue. Do we want software patents at all?

Software patents help what, again?

Via James Robertson, I read that Interval is suing about a dozen major software companies over patent infringement. I am having trouble finding an original link to the case information, but here's a link to one copy of Interval's opening volley.

Here's the IP Interval is suing over:

The ’507 patent describes an invention that enables a user to efficiently review a large body of information by categorizing and correlating segments of information within the body of information and generating displays of segments that are related to the primary information being viewed by the user.

From this alone, you might thing they have some advanced technique for categorizing and showing related information. No, they really are claiming that the whole idea of showing users a list of items related to the one they are looking at is an Interval invention. For example, here is their complaint about eBay:

Defendant eBay has infringed and continues to infringe one or more claims of the ’507 patent under 35 U.S.C. § 271. eBay operates the eBay.com and Half.com websites, which provide content such as product listings and advertisements to users. In order to help users find additional content that may be of interest, the software and hardware that operate these websites compare the available content items to determine whether they are related. When a user views a particular content item, the eBay.com and Half.com websites generate displays of related content items so as to inform the user that the related items may be of interest. For example, as demonstrated by Exhibit 8, when a user views a particular product listing on eBay.com, the eBay.com website displays both the selected product information (identified by the orange box) and links to other related products (identified by the green boxes). The hardware and software associated with the eBay websites identified above and any other eBay websites that perform this function infringe at least claims 20, 21, 22, 23, 24, 27, 28, 31, 34, 37, 63, 64, 65, 66, 67, 70, 71, 74, 77, and 80 of the ’507 patent under 35 U.S.C. § 271.

The theory behind patents is that, without patent protection, nobody would have invented the idea in question. By offering patent protection, companies will devote resources to research that they otherwise would not have. Can anyone seriously believe, however, that we would have more innovation if all of AOL, Apple, eBay, Facebook, Google, Netflix, Office Depot, OfficeMax, Staples, Yahoo, or YouTube had honored this patent and not shown similar items on their web sites? Does anyone believe that if Interval hadn't "invented" this idea, that nobody else would have?

An additional part of the rationale for patents is that the idea are difficult to develop, that they would only emerge if significant private resources were dedicated to its research. That, too, is hard to believe for this idea. How long did it take the guys at Interval to come up with this idea? Five minutes, maybe?

I have an idea how to stimulate the software industry. Stop issuing software patents.

Patents as Mutual Assured Destruction

The best way I can understand the popularity of software patents is that they protect incumbent companies from newcomers. Large incumbent companies accumulate patents, they use them to litigate against small newcomers who have no patents of their own, and they form patent-sharing agreements with each other to prevent the same thing from happening to them. Occasionally it comes back to bite one of the incumbents, but for the most part they seem to believe it comes out in their favor.

One place this arrangement fails, though, is if one of the incumbents decides not to play for the long term. See, the reason incumbents don't sue each other over patents is that they fear the counter-suit. It's classic M.A.D.: mutual assured destruction.

However, what if an incumbent is on their way out of the computer business, either because they are shifting focus or because they are retiring? Well, in that case, the fear of a counter-suit would be nonexistent, wouldn't it? Count me in as one who thinks Paul Allen's recent actions suggest he is planning to retire, or at the very least get out of computers. My next best guesses are that he is trying to make some sort of point, or that he is simply unsavvy about the software industry. Neither of these sounds especially likely.

Microsoft bitten by a software patent

The injunction (PDF), which becomes effective in 60 days, prohibits Microsoft from selling future Word products that allegedly use the patented technology. It also enjoins Microsoft from testing, demonstrating, marketing or offering support for those future products.

Davis also ordered Microsoft to pay i4i more than $290 million in damages.

- Nick Eaton at The Microsoft Blog

Large corporations like Microsoft like software patents because they are a barrier to entrance for new corporations. Large companies can cross-license with each other. Small companies, meanwhile, don't have their own patent portfolio, so they can be sued out of existence. Occasionally the tables are turned, as in this case, but apparently Microsoft still thinks it's worth it, at least as of 2007.

From all other perspectives than that of the largest software companies, software patents are failing. The above patent should have never been granted. Worse, a company with the legal resources of Microsoft should have had no trouble proving prior art and overturning the patent. As much as I relish the irony of this case, it isn't just, and I hope it is overturned on appeal. There is no sense that i4i's inventions are being protected. It's simply legal warfare.

I should write more about software patents. As a place to start, the meandering manifesto of the League for Programming Freedom has several highlights that have influenced me.