Rob Tiller (Red Hat) has posted an interesting article about three mainstream articles (NPR, The Economist, Professor Mark Lemley) discussing problems caused by software patents.

That’s great news. Awareness of certain problems is growing in the mainstream press, but discussion of solutions is still quite shallow.

Trolls, innovation, and the economy

First, a glance at the three articles.

The NPR article is excellent:

The author digs into the very secretive dealings of patent troll Intellectual Ventures and reveals how little research they do, how they profit from litigation without getting their name mentioned, and how much patent fear exists among the small and medium-sized businesses of Silicon Valley.

The article in The Economist reviews the NPR article and adds some dicussion of importance of innovation to economies on a national level, and how patents are slowing innovation. Also interesting.

Finally, Mark Lemley discusses the causes of innovation and says that “Invention appears in significant part to be a social, not an individual, phenomenon. Inventors build on the work of those who came before, and new ideas are often ‘in the air,’ or result from changes in market demand or the availability of new or cheaper starting materials.” Lemley does talk about solutions, but while I haven’t read the solutions he suggests in this recent paper, I’ve found his previous proposals to be insufficient for software.

Two problems are yet to get the attention they deserve: standards and sufficient development.

First: Why are other problems important

There are ways to reduce the patent troll problem: Reduce the damages which courts can award to patent holders, require litigators to have products (like the US International Trade Commission requires), make the availability of low-cost licences mandatory for small businesses, etc. Might help.

If you think that patent trolls are the problem, then these might seem worth trying. It’s only when you look at the whole range of problems that it becomes clear that software patents simply shouldn’t exist.

Very little focus is given to the other group that uses patents to block software developers: large software companies. They all have big patent portfolios. Competition reduces their profits, so they use their patents to lock other developers out.

Currently underestimated: development, quality, competition

We don’t want just one implementation of each idea, we want loads. We need a legal framework which encourage software development. Sometimes software development produces innovation, and sometimes it doesn’t – sometimes it’s combining existing ideas in a more convenient package, or in a way that works with your other software, or to make a program that’s faster, or to provide similar functionality but with a better software licence or Terms Of Use.

The profile of software developers makes this important: software is developed by the biggest companies in the world, but also by individuals, groups of hobbyists, and by people that develop software as a by product of doing their main job. There is a massive spectrum of legal, human, and financial resources. Huge companies might see inefficiencies in the patent system and suggest tweaks, but for developers closer to the other end of the spectrum, patent litigation is a 60-foot wall without footholds.

Encouraging software development is about everyone having the right to enter the market, or the freedom to develop software, depending on your terminology.

Lastly: standards and compatibility

For software to be useful, it must look and behave more or less as computer users expect it to look and behave. More than that, it usually has to be able to read and write data in specific formats. If a word processor can’t read and write the types of word processor files that are in current use, then it’s not a useful word processor. Using existing ideas is thus essential. If you invent your own file format, it might be innovative, but it might also be useless. Like inventing a super new plug that doesn’t fit into any socket.


There’s no tweak that can fix all these problems. Software never should have been patentable in the first place.

More info on the wiki…

Categories: Opinion