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Michael Risch wrote a longer piece on software patents and why we should try to make software patents work: Curing the Problem of Software Patents

Here is my answer:

I think the main problem with the patent system isn’t the ideas behind but that some people have started to abuse it. And those who didn’t are being driven to join the brawl for no other reason than protect themselves.

You quoted “Software is hardware in every sense that matters for patents.” Let’s have a deeper look at that. Software is a formalized way to write recipes (as in cooking). Software development is a translation process (as in language interpreter). We take ideas from customers and turn them into detailed instructions to be executed by a moron. A human could do it but since it would be boring, we use a computer. Note that software isn’t mathematics – it’s language (as in English). It’s very limited (because the computer is so very dumb) but we’re more authors than mathematicians.

Now, my questions are:

1. Can you patent the work of an online interpreter?
2. How about the words that come out of her/his mouth?
3. What about the words that she/he hears and translates?

My answers:

#1: No. The process of translating something is a craft. Crafts as such are not patentable.

#2: Since the interpreter doesn’t add anything of value to the input (they should stay true to what is given them), the output can’t be more or less than the input. It’s the input in another form but by itself, it doesn’t make the input more or less patentable.

#3 This leads to the question: Can you patent a recipe?

And the answer here is, sadly, yes. Which leads to the question: Can you patent any recipe?

No: The recipe has to be, well, “outstanding” in some way. Unfortunately, there is no universal standard what “outstanding” means. When I teach a newbie, they will think my methods are outstanding but they are just by relative comparison of what they know and what I know.

Since “outstanding” doesn’t seem to be a good tool to make a decision, what else do we have?

Damage. One of the roots of patent law is the idea to bring more justice to the world. It was invented for the specific purpose to protect the work of “helpless” inventors so they wouldn’t be ripped off all the time.

This makes sense if you, say, develop a new medicine. As of today, you need to spend around one billion dollars for a new medicine. Without patent law, it simply wouldn’t make sense for corporations to take the involved risks, so it makes sense to apply it here.

But software patents are in a completely different league. They cost $20’000 or less to produce and they can cause hundreds of billions of damage when they are used as a weapon – which is the sole and main purpose of software patents.

Since software patents are used solely to damage society as a whole (forcing companies to invest in them, costs of defending yourself against a lawsuit no matter if it’s justified or not, costs of canceling abusive patents, costs in lost revenue when you can’t sell your product because a competitor wants more market share), they need to be outlawed.

If you fail in this task, then no new computer related products will be sold in the USA by … well … 2013 because everyone will be suing everyone and all money will flow into courts and to patent lawyers. No more software development will happen because it’s just too expensive/dangerous. Maybe someone will find a patent to “display text remotely” and take down Google or the whole Internet (at least the part that runs in the USA).

The lawsuits between Apple and Samsung should be a warning shot. These only exist to give one company a bigger market share in a saturated market. Better product doesn’t count nor how “inventive” it is. It’s just the logical, inevitable conclusion what happens when all players follow the rules that we made.

Or Oracle vs. Google. Oracle came in demanding several billion dollars and got nothing. But if they had a different judge, the outcome could have been completely different. Is that what we want?

This seems to damage companies like Swype (see “An Example” in his post). But does it really?

First of all, someone could copy their idea. But customers would only buy the copy when it was better for most of them. Do we really want to protect something that most people think worse?

Copying an idea usually leads to a new, very similar but still different idea. The “thief” adds his own wisdom to it. We call that process “learning”. Isn’t that something that we should support?

If Swype can’t patent their idea, they can still make a product and sell it. If they fail, some money will be lost. But if they succeed, no other company can sue them for billions of dollars for no other reason than to slow them down. Isn’t that better than the other way around?

We say that the Internet Year is only three months. New ideas spring up so quickly by now that the old, sluggish patent system can never keep up. Do we want to slow down progress (might be a good idea) *and* feed the trolls? How much is an idea worth protecting if it’s outdated in 9 months?

How much more money will we make/safe if software patents are outlawed and all this money goes back into R&D?

Related:

• Defend Innovation
• Other posts about patents by me