The Great Software Patent Debate

Timothy Lee of the Cato Institute has an outstanding Op-Ed in the New York Times today titled A Patent LieHe makes an assertion that I strongly share:

“But don’t software companies need patent protection? In fact, companies, especially those that are focused on innovation, don’t: software is already protected by copyright law, and there’s no reason any industry needs both types of protection. The rules of copyright are simpler and protection is available to everyone at very low cost. In contrast, the patent system is cumbersome and expensive. Applying for patents and conducting patent searches can cost tens of thousands of dollars. That is not a huge burden for large companies like Microsoft, but it can be a serious burden for the small start-up firms that produce some of the most important software innovations.”

Toss the trade secret doctrine into the mix and you are all set.

  • Furthermore…

    You can’t copyright something until you have actually done it. You can patent your plan to execute a piece of software, even though you don’t have the capability to actually execute it. In SW development in particular the devil is in the details. It’s one thing to throw together a nice flow diagram and some ER diagrams, patent that and say “I own whatever”. But until you have actually written the software and it runs you haven’t done shit.

    Using copyright solves that problem.

  • James Mitchell

    “Debate” implies there are two logical, rational sides of an issue. I have yet to met someone who knows something about the software industry who thinks software patents are a good idea. Most of the better software companies simply rack up a lot of patents for defensive purposes — when they get sued for patent infringement, they look at the plaintiff’s product and try to figure out if they are violating one of their patents. Software is too much of an incremental, building block craft for patents to be useful.

    James Mitchell