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InfoQ Homepage News Controversial Opinions on Software Patents - The Good, the Bad, and the Ugly

Controversial Opinions on Software Patents - The Good, the Bad, and the Ugly

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Patents are quite often in the news these days, most notably the ones related to smart phone vendors like HTC, Samsung, Google and Apple. This also holds for the rather emotional and controversial discussion about software patents which some consider as a means to ensure innovation and others as a kind of weapon. But who is right and who is wrong? With other words, do software patents cause more harm than good, or vice versa?

In a recent post Martin Fowler explains his perspective. He quotes William Rosen who strongly believes that the Industrial Revolution would have never happened without patents. Patents enabled inventors and even those without wealthy patrons to afford innovation. So, patents were the best invention of the Industrial Revolution. However, in the case of software patents this excellent means has been abused. According to Fowler,

the whole point of patents is to grant a (limited-term) monopoly to something that is new.

But as he further states,

everyone in the software field has seen a parade of patents which do nothing but try to claim rights on techniques that have already been in use for years, let alone developments that while new, are are still obvious to those of us with ordinary skills in programming.

Software patents often cover a very broad scope, while they should be more concrete and narrow. This is due to the fact that large organizations are increasingly using them for legal warfare. Such abuse of patents prevents innovation instead of enforcing it. And even worse, smaller companies or indivduals cannot afford the time and money for a patent lawsuit. Eventually, software patents enforce monopolies. To give an impression: An Android phone covers around 250.000 patents according to Google.

Erick Schonfeld in an article points out another problem. If companies pay billions of US-Dollars for protecting and defending their business from rival patent claims, this investment won't be available for new jobs, new products, or other productive activities. Thus,

the cost of patents (at least for software) outweighs their value to society.

He even thinks that we are in the middle of a patent bubble.

Attempts of the US and the European Union to improve the situation of software patents have not resulted in appropriate measures so far, as Richard Stallman emphasizes in his statement for the Guardian. In particular, within the European Union pro-patent lobbyists have proposed the concept of a unitary patent. When an European patent is granted to an inventor, it would be valid throughout the whole EU except of Italy and Spain. Stallman believes this would cause similar patent wars like in the US. More information about the pro-patent lobby work within the EU is available here.

Of course, there are also proponents of software patents. One prominent example is Bob Zeidman, author of a book on IP (Intellectual Property). In a discussion with Edward A. Lee from UC Berkeley on 24th August he brought up the point that without software patents there would exist no means to prevent companies and individuals from stealing the ideas of others. Moreover, according to Zeidman, there would be no technological growth without embracing the idea of IP protection. His viewpoint is also available in an InformIT podcast episode.

There are many arguments pro as well as contra the idea of software patents. However, the number of opponents appears to be much larger. Fowler draws the conclusion that software patents would be an excellent approach "if we were able to get back to the core beneficial principles of patents and apply them properly." But as long as the current mess prevails, software patents should be completely eliminated.

So what's your personal take on this controversial topic?

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