The Drumbeats Against Software Patents Are Getting Louder

There is a great article by Timothy Lee, an adjunct scholar at the Cato Institute, out today titled The Case against Literary (and Software) PatentsLee, an adjunct scholar at the Cato Institute who is also a Ph.D. student in Computer Science at Princeton, totally nails it. 

Here’s the beginning:

“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. That’s why many of us are hoping the Supreme Court definitively rules out patents on software when it hears the case of Bilski v. Doll this coming term.”

And here’s the conclusion:

“The writing of software, like writing in English, is a creative activity practiced on a vastly wider scale than other activities commonly afforded patent protection. Small businesses and nonprofit organizations far removed from the traditional software industry have IT departments producing potentially infringing software. The Brookings Institution’s Ben Klemens has documented that this is not a theoretical problem. Entities as diverse as the Green Bay Packers, Oprah Winfrey, Kraft Foods, and J. Crew have been sued for developing or using ordinary business software.

Regulations that work well when applied to a handful of large, capital-intensive firms can become an intolerable burden when applied to millions of small organizations and individuals. It’s not reasonable to expect hundreds of thousands of small businesses to vet the software they produce for patent infringement, any more than it would be fair for them to face liability for publishing a brochure with an infringing turn of phrase.

The high overhead of the patent system demands that it be limited to relatively concentrated and capital-intensive industries in which most participants have the means to comply with the requirements of patent law. Patents on English writing would not meet this requirement. Neither do patents on software.”

There’s plenty of good stuff in between.  Go read it.  I just got invited to go to the Supreme Court and listen to re: Bilski.  Psyched!

  • DaveJ

    Exciting that you get to attend the oral arguments! Suggestion: listen to oral arguments for one or two cases on Oyez ( before you go, so you know what to expect.

  • Brad, software patents could offer startups a competitive advantage when raising funds. What other ways could a small software startup use to defend against large software firms who could with the stroke of a pen patent their latest coolest idea?

  • I work for "a huge distributor of Linux" and open source and it's amazing to see how 1) Micro$oft and Big Blue really are the evil patent holders, and 2) how coming up with your own patent within the company is heavily rewarded.
    It's like all the big players are just stock piling an arsenal of nuclear weapons just to have them. Then, when war time comes, all hell will break loose.

  • If the Supreme Court makes it much more difficult to apply patent law with respect to software, it will affect smaller software companies disproportionately relative to larger companies. "Windows" was rejected by the USPTO many times (it was, after all, a generic term) – but MSFT ultimately won out because MSFT had enough resources (lawyers) available to stay the course indefinitely. Smaller companies may struggle.

    Hey Brad, do you plan on tweeting during proceedings? That way, we can all attend…

    • Windows wasn’t patented – it was trademarked.  Totally different issues. 

      I doubt I’ll tweet during the proceedings, but I’ll definitely blog about it afterwards.

  • well in light of this revelation this morning where IBM is making a land grab for automated twitter updates from social media activities, we need reform immediately.

    this is seriously scary.

  • hrm wonder what the most lucrative computer/software patent would be? If you could patent a device that writes bits to any medium using a maget, you might be able to make a few dollars suing Western Digital, Hitachi, and Samsung. But then again, patenting the idea of a kernel would allow you to sue Apple, Sun (Oracle), Microsoft and others.

    During one of my senior cs courses we had a discussion on software patents, and its amazing to see how many people believe that they are necessary to have. They dont understand that while some companies use the patents to protect intellectual property, others use it for evil. How stupid is it that a company holds a patent on how to edit XML files?

    Stealing intellectual property is bad, but awarding stupid patents should be a crime.

    • joe


  • tim

    why patent anything then. the patent system is based on a three prong test: new, novel, non-obvious.

    it is not based on whether it is software or whatever.

    making the creative analogy between prose and software is bullshit. my software is artificial intelligence that runs on a web browser to DO WORK and not social networking or other past times.

    if you say, well patents are good for mechanical devices … i say bullshit.

    for every frivolous software patent, i can point to two or three frivolous mechanical device patents that failed the three prong test like software.

    in my opinion, we either stick to the three prong test or dump patents altogether.

    • tim

      the article referenced in this post is focused on business method patents. this INCLUDES software but is NOT LIMITED to software. and frankly, i agree – business method patents are bogus … they do not pass the three prong test – i have not seen one yet that passed the non-obvious test.

      so why continue to have the emotional rant that throws the baby out with the bathwater? i dont get it.

      • I’m not sure which is baby and which is bathwater.  I assert that neither business method patents nor software patents are valid constructs to be patented.

    • My fundamental issue with software patents is that the vast majority of them don’t fit the new / unique / non-obvious test.  In addition, my guess is that you are much better protected by treating your software as a trade secret than you would be by patenting it.  The “well – mechanical patents are bad also, therefore it should be ok for bad software patents to exist” isn’t a valid argument (for anything).

      • tim

        Brad – with all due respect – you are missing my point – i am NOT saying if A is bad then B is bad – I am saying A and B do NOT matter – the TEST is what matters.

        I mentioned mechanical because you are obsessed with software – I was merely pointing out that the problem is UNIVERSAL and NOT just software …

        I will name check you in a blog post today at – love your work.

        • Ok – I accept that.  However, the way I read your comment was that “if you think software patents are bad, then you must think other patents are bad, therefore if you do away with software patents you need to do away with all patents.”

          While I agree that the test is what matters, there is also the fundamental notion of what you can actually patent (e.g. you can’t patent “a story” – that’s what copyright is for.)  As I’m sure you know, you can’t patent “an idea”, rather you patent the instantiation of the idea., I’ve long argued that copyright and trade secret are the appropriate intellectual property protection for software. 

          • tim

            hi Brad,

            yes … and we agree … I am just saying the problem is bigger than software.

            i am all for either abolishing the system completely OR fixing it by streamlining the process and getting competent examiners.

          • the coke recipe is stored below their 10th street building in ATL (at least thats what I heard from a VP a few years ago)

  • Speaking of Cato, it has been interesting to watch the libertarian movement shift. 10 years ago most libertarians would have have vehemently supported "intellectual property" as if it were the same as any other property right.

    I've written a blog on this:

    I agree with the writing English analogy. It's like granting patents on various permutations of "murder mystery" and then forcing all newcomers to operate in that minefield.

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  • a great topic .. thank you

  • a great topic .. thank you

  • Bill Mosby

    Interesting to see an expert use the literary analogy. I've used it once or twice in blog comments. Seems to me that some software patents are almost the equivalent of patents on words or phrases. The big problem with software patents is that so much prior art was unknown to the patent office when they were forced to start issuing them. Donald Knuth said in 1994 before a Congressional inquiry into software patents that patents were being issued on code that was the same as that produced by his students when they did homework in his classes.

  • Bill Mosby

    I just read Knuth's 1994 letter to the PTO and realize where I first encountered the literary patent analogy. In Knuth's statement, which is very similar to the letter.

    • Knuth > *


        "For the Supreme Court's upcoming review of the Bilski decision, IBM has submitted an amicus brief claiming that software patents 'fueled the explosive growth of open source software development' (!) (p38 of linked PDF). EndSoftwarePatents, for its own amicus brief, is looking for help building a list of free software harmed by software patents, and a list of companies that distribute free software and are taxed by patent royalties."

        Someone needs to have Knuth speak at the hearing

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  • tim

    regarding google design patent – how else would you do a search page? unfuckingbelieveable. i am ready to support the abolishment of the patent system (and potentially the entire federal government)

    i get flashbacks to the Idiocracy movie. and the taste of vomit in my mouth.

    • Yeah – this one is so unbelievably ridiculous that we probably need a new word than ridiculous to describe it.

  • add this to the wtf pile – <a href="…” target=”_blank”>

    "A week after new USPTO Director David Kappos pooh-poohed the idea that a lower patent allowance rate equals higher quality, Google was granted a patent on its Home Page. Subject to how the design patent is enforced, Google now owns the idea of having a giant search box in the middle of the page, with two big buttons underneath and several small links nearby. And you doubted Google's commitment to patent reform, didn't you?"

  • Eric Dolecki

    This is a pretty cool commenting system.

  • I hate to rain on the parade, but a design patent is nothing like a process patent.

    A design patent only covers the non-functional ornamental elements of a design. It is more like a copyright.

    Copyright does not apply to functional things… for example you can't copyright a car design, no matter how sleek and artistic it is. You can, however, get a design patent on the non-functional design elements of it.

    Design patents fill a gap in copyright law and are generally non-evil.

  • Nice. That's a really awesome article.

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