The Fundamental Question – Against Software Patents - The Research Center on Computing & Society

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The League for Programming Freedom

The Fundamental Question

According to the Constitution of the United States, the purpose of patents is to “promote the progress of science and the useful arts.” Thus, the basic question at issue is whether software patents, supposedly a method of encouraging software progress, will truly do so, or will retard progress instead.

So far we have explained the ways in which patents will make ordinary software development difficult. But what of the intended benefits of patents: more invention, and more public disclosure of inventions? To what extent will these actually occur in the field of software?

There will be little benefit to society from software patents because invention in software was already flourishing before software patents, and inventions were normally published in journals for everyone to use. Invention flourished so strongly, in fact, that the same inventions were often found again and again.

In Software, Independent Reinvention Is Commonplace

A patent is an absolute monopoly; everyone is forbidden to use the patented process, even those who reinvent it independently. This policy implicitly assumes that inventions are rare and precious, since only in those circumstances is it beneficial.

The field of software is one of constant reinvention; as some people say, programmers throw away more “inventions” each week than other people develop in a year. And the comparative ease of designing large software systems makes it easy for many people to do work in the field. A programmer solves many problems in developing each program. These solutions are likely to be reinvented frequently as other programmers tackle similar problems.

The prevalence of independent reinvention negates the usual purpose of patents. Patents are intended to encourage inventions and, above all, the disclosure of inventions. If a technique will be reinvented frequently, there is no need to encourage more people to invent it; since some of the developers will choose to publish it (if publication is merited), there is no point in encouraging a particular inventor to publish it – not at the cost of inhibiting use of the technique.

Overemphasis of Inventions

Many analysts of American and Japanese industry have attributed Japanese success at producing quality products to the fact that they emphasize incremental improvements, convenient features and quality rather than noteworthy inventions.

It is especially true in software that success depends primarily on getting the details right. And that is most of the work in developing any useful software system. Inventions are a comparatively unimportant part of the job.

The idea of software patents is thus an example of the mistaken American preoccupation with inventions rather than products. And patents will encourage this mistaken focus, even as they impede the development work that actually produces better software.

Impeding Innovation

By reducing the number of programmers engaged in software development, software patents will actually impede innovation. Much software innovation comes from programmers solving problems while developing software, not from projects whose specific purpose is to make inventions and obtain patents. In other words, these innovations are byproducts of software development.

When patents make development more difficult, and cut down on development projects, they will also cut down on the byproducts of development – new techniques.

Could Patents Ever Be Beneficial?

Although software patents in general are harmful to society as a whole, we do not claim that every single software patent is necessarily harmful. Careful study might show that under certain specific and narrow conditions (necessarily excluding the vast majority of cases) it is beneficial to grant software patents.

Nonetheless, the right thing to do now is to eliminate all software patents as soon as possible, before more damage is done. The careful study can come afterward.

Clearly software patents are not urgently needed by anyone except patent lawyers. The pre-patent software industry had no problem that was solved by patents; there was no shortage of invention, and no shortage of investment.

Complete elimination of software patents may not be the ideal solution, but it is close, and is a great improvement. Its very simplicity helps avoid a long delay while people argue about details.

If it is ever shown that software patents are beneficial in certain exceptional cases, the law can be changed again at that time – if it is important enough. There is no reason to continue the present catastrophic situation until that day.

Software Patents Are Legally Questionable

It may come as a surprise that the extension of patent law to software is still legally questionable. It rests on an extreme interpretation of a particular 1981 Supreme Court decision, Diamond v Deihr.1

Traditionally, the only kinds of processes that could be patented were those for transforming matter (such as, for transforming iron into steel). Many other activities which we would consider processes were entirely excluded from patents, including business methods, data analysis, and “mental steps.” This was called the “subject matter” doctrine.

Diamond v Deihr has been interpreted by the Patent Office as a reversal of this doctrine, but the court did not explicitly reject it. The case concerned a process for curing rubber – a transformation of matter. The issue at hand was whether the use of a computer program in the process was enough to render it unpatentable, and the court ruled that it was not. The Patent Office took this narrow decision as a green light for unlimited patenting of software techniques, and even for the use of software to perform specific well-known and customary activities.

Most patent lawyers have embraced the change, saying that the new boundaries of patents should be defined over decades by a series of expensive court cases. Such a course of action will certainly be good for patent lawyers, but it is unlikely to be good for software developers and users.

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