The US Senate Judiciary Committee’s bill on “patent reform” will not address the main patent problems of software developers.

The bill takes aim at a problem experienced by a small number of large companies, namely, the problem of patent trolls litigating in the hope of a pay-out at the end of a long legal process. Ironically, many of the large companies that will benefit from this bill are the cause of the real patent problems for software developers.

To write useful software, compatibility with existing data formats is essential. Examples are the “FAT” file system and the MPEG h.264 video format. The former is patented by Microsoft, and the latter is the subject of over 1,000 patent claims, mostly from large companies. Compatibility problems are not caused by trolls or excessive damages, it’s about powerful companies using patents to block everyone else or imposing “software distribution tax”.

Most software developers – SMEs and individuals – don’t have the resources to even begin the legal process, let alone the months or years necessary pursue it to the end. Regardless of the outcome, the possibilty of having to go to court is in itself an injustice for an activity such as software development, which is no more industrial than writing an article or a song.

Everyone who makes a web page or an app for their handheld computer is a software developer. This shouldn’t be exclusively for an elite.

Further, the demands of patent holders can be incompatible with the development or distribution model of software. The amount of damages has no effect on this. An example is developers who distribute their software at no cost, possibly earning money through a related product or service, or possibly as a public service (e.g. schools). This zero-cost distribution doesn’t happen in other domains where the raw materials require a per-unit production cost, such as pharmaceuticals or automobiles. This is one of the reasons why patents are not suited to software.

What software developers need is freedom to operate. Freedom to be compatible with the file formats that are widely used, freedom to add the features that are useful and expected by users. Fewer barriers to software development. Then we will see fewer monopolies and more software doing what users want.

The reform we need is legislation clarifying to the courts that software is not patentable.

Categories: Case Law