Why Software is Different – Against Software Patents - The Research Center on Computing & Society

Text-only Version

The League for Programming Freedom

Why Software Is Different

Software systems are much easier to design than hardware systems of the same number of components. For example, a program of 100,000 components might be 50,000 lines long and could be written by two good programmers in a year. The equipment needed for this costs less than $10,000; the only other cost would be the programmers’ own living expenses while doing the job. The total investment would be less than a $100,000. If done commercially in a large company, it might cost twice that. By contrast, an automobile typically contains under 100,000 components; it requires a large team and costs tens of millions of dollars to design.

And software is also much cheaper to manufacture: copies can be made easily on an ordinary workstation costing under ten thousand dollars. To produce a complex hardware system often requires a factory costing tens of millions of dollars.

Why is this? A hardware system has to be designed using real components. They have varying costs; they have limits of operation; they may be sensitive to temperature, vibration or humidity; they may generate noise; they drain power; they may fail either momentarily or permanently. They must be physically assembled in their proper places, and they must be accessible for replacement in case they fail.

Moreover, each of the components in a hardware design is likely to affect the behavior of many others. This greatly complicates the task of determining what a hardware design will do: mathematical modeling may prove wrong when the design is built.

By contrast, a computer program is built out of ideal mathematical objects whose behavior is defined, not modeled approximately, by abstract rules. When an if-statement follows a while-statement, there is no need to study whether the if-statement will draw power from the while-statement and thereby distort its output, nor whether it could over-stress the while-statement and make it fail.

Despite being built from simple parts, computer programs are incredibly complex. The program with 100,000 parts is as complex as an automobile, though far easier to design.

While programs cost substantially less to write, market and sell than automobiles, the cost of dealing with the patent system will not be less. The same number of components will, on the average, involve the same number techniques that might be patented.

The Danger of a Lawsuit

Under the current patent system, a software developer who wishes to follow the law must determine which patents a program violates and negotiate with each patent holder a license to use that patent. Licensing may be prohibitively expensive, or even unavailable if the patent is held by a competitor. Even “reasonable” license fees for several patents can add up to make a project unfeasible. Alternatively, the developer may wish to avoid using the patent altogether; but there may be no way around it.

The worst danger of the patent system is that a developer might find, after releasing a product, that it infringes one or many patents. The resulting lawsuit and legal fees could force even a medium-size company out of business.

Worst of all, there is no practical way for a software developer to avoid this danger – there is no effective way to find out what patents a system will infringe. There is a way to try to find out – a patent search – but searches are unreliable and in any case too expensive to use for software projects.

Patent Searches Are Prohibitively Expensive

A system with a hundred thousand components can use hundreds of techniques that might already be patented. Since each patent search costs thousands of dollars, searching for all the possible points of danger could easily cost over a million. This is far more than the cost of writing the program.

The costs don’t stop there. Patent applications are written by lawyers for lawyers. A programmer reading a patent may not believe that his program violates the patent, but a federal court may rule otherwise. It is thus now necessary to involve patent attorneys at every phase of program development.

Yet this only reduces the risk of being sued later – it does not eliminate the risk. So it is necessary to have a reserve of cash for the eventuality of a lawsuit.

When a company spends millions to design a hardware system, and plans to invest tens of millions to manufacture it, an extra million or two to pay for dealing with the patent system might be bearable. However, for the inexpensive programming project, the same extra cost is prohibitive. Individuals and small companies especially cannot afford these costs. Software patents will put an end to software entrepreneurs.

Back to the top

Go to: Patent Searches Are Unreliable

Home > Research Resources > Software Ownership & Intellectual Property Rights > Against Software Patents

The Research Center on Computing & Society
at Southern Connecticut State University
501 Crescent Street • New Haven, CT 06515
Director: (203) 392-6790 • e-mail: webmaster@computerethics.org

© 2000 – 2007 – Research Center on Computing & Society