Patents are important. They create an incentive for inventors to release their inventions into the public domain in return for a temporary monopoly on those inventions. Everybody loves patents. Software patents, on the other hand, must die.
Lately there has been a lot of news about patents, as almost every mobile company in existence is suing every other company for infringement. That many happy lawyers should have been a warning sign that something fishy was going on. And this being the Internet, everyone online wants to leap to the defense of their favorite. But ultimately, there are no winners in this game, because software patents have done nothing but harm innovation. They're counter-productive, anti-competitive, and insulting.
The most well-written defense of software patents that I've seen comes from Nilay Patel, who is a former lawyer, and focuses mainly on why patents in general are beneficial to society. I don't have any issues with that. But let's examine his claims on software patents in particular, as a way of getting at why they're broken. He writes:
Patents publicly disclose some of the most advanced work ever done by some of the most creative and resourceful people in history, and it'll all be free for the taking in several years. Stop offering patent protection and there's no more required disclosure -- all this stuff stays locked up as trade secrets as long as it offers a competitive advantage, after which point it may well be forgotten.
What might surprise you is that the USPTO has historically resisted efforts to patent software, only to have the courts chart a different course. The conflict itself is a simple one: software is ultimately just the automated expression of various algorithms and math, and you can't patent math. To many, it then seems like a forgone conclusion that software patents shouldn't exist -- preventing other people from using math is solidly outside the boundaries of the patent system. The problem isn't software patents -- the problem is that software patents don't actually exist.
But look a little closer and it's easy to see that the boundaries between "just math" and "patentable invention" are pretty fuzzy. Every invention is "just math" when it comes right down to it -- traditional mechanical inventions are really just the physical embodiments of specific algorithms.
That last bit, the part about how everything is "just math" (Patel uses the example of a special beer bottle shape), is where this argument runs into trouble (well, that and the point where he admits that he's neither a patent lawyer nor a developer, meaning that he brings almost no actual expertise to a highly-technical table). As Patel is not a developer, it's not immediately apparent to him the difference between pages of source code and a physical mechanism. But they are, in fact, very different: computer programs are, at heart, a series of instructions that the device follows. They're more like a recipe than a machine. Can you imagine patenting a recipe--claiming to have "invented" a type of bread, or a flavor of pie, and insisting that anyone else making an apple pie must pay your licensing fees? It's ridiculous.
To add insult to injury, what most programmers will tell you is that the majority of software is not "some of the most advanced work ever done," but a series of obvious steps connected together. Take, for example, Patel's own example, drawn from Apple's multitouch patent.
You may think that looks really complicated--Patel clearly does--but it's really not. That chunk of text, once you pull it apart and turn the math into actual working code, reduces to three steps:
Now, Patel is careful to say that this is not the complete patent. But I've looked over the complete patent text, and frankly there's little I see there that goes beyond this level of complexity. It describes the kind of common-sense steps that anyone would take if they were implementing a multitouch UI (as well as a number of steps that, as far as I can tell, no-one--including the patent-holder--has actually implemented, such as distinguishing between a palm or elbow and a stylus). There's nothing novel or non-obvious about it--it's just written in so much legalese that it looks extremely complicated.
Such obfuscation overturns the entire argument for patents in the first place. After all, if I were trying to code something, there's no way I'd turn to a software patent like this to figure out how to implement it--it leaves out too many steps, overcomplicates those that it does describe, adds a bunch of extraneous notes that I have to discard, and includes no source code at all. It'd be easier for me to figure it out myself, or learn from an open-source implementation.
Moreover, if I worked for a big company, like Apple or Microsoft, I'd be forbidden from reading patents in the first place, because the penalties for "knowing" infringement are much higher than "unknowing" infringement (a particularly ironic term, given that someone can "unknowingly" infringe by inventing the process independently). Meanwhile, as Lukas Mathis points out, we don't actually need the patent for an actually innovative piece of programming (Google's original PageRank) because it was published openly, as an academic paper.
I'm not saying, by the way, that multitouch hardware can't--or shouldn't--be patented. By all means, the inventor of the capacitative screen--a non-obvious, physical work of engineering--should be rewarded for their creativity. But that's not what Patel is defending, and it's not what the patent in question actually covers.
So software patents don't cover brilliant work, and they're not encouraging innovation. In fact, they discourage it: thanks to patent trolls who sue small companies over broad software patents, indie developers may not be able to afford the cost of business at all. If this seems difficult to reconcile with the arguments for the existence of software patents, that's because it undermines their entire case. Software patents are just broken: that's all there is to it.
What bothers me about this is not so much the ongoing lawsuit frenzy--I could really care less when large companies sue each other as a proxy for their market competition--but that there's this idea floating around that some software patent lawsuits are worthwhile, based on who's doing the suing. Everyone agrees that trolls like Lodsys (a shell company suing small developers over a purported patent on "in-app purchases") are a drain on the system. Whereas if Apple, or Microsoft, or Nokia files a patent suit, their fans charge to their defense against "copycats," as if their patents are the only really innovative ones in existence. Even this week, pro-Apple pundit John Gruber cheered Google's action against Lodsys while simultaneously insisting that Android and Linux should be sued out of existence for patent theft.
But there are no justified software patent lawsuits, because there are no justified software patents. You don't get to say that patent trolls are despicable, while defending your favorite company's legal action as a valid claim--it's the same faulty protection racket at work. Software patents are a plague on all our houses, and tribalism is no excuse for preserving them.