Even Hypothetical Software Patents are Bad

by on June 17, 2006 · 10 comments

Daniel Markham takes me to task for being one of those “software patents are destroying the world!” types:

Imagine for a minute that I just got off a time machine from the year 5600. I know how to make truly intelligent machines, so I sit down and write a patent on how to make computer intelligence. Now at the heart of my patent will be arrays, indexes, memory cores–all of the usual computer stuff. It’s all just ones and zeros, folks. But obviously my patent has tremendous value to society.

This is a silly example, but since it IS possible to make an example where software patents make sense, the question isn’t whether they are useful or not, the question is how to tell the difference. That’s a big point that a lot of folks miss. Get rid of the bath water, keep the baby.

This is a silly example for a number of reasons, and not just the obvious ones. In the first place, it’s unlikely that somebody’s going to sit down at his computer and come up with a single breakthrough that makes computers instantly intelligent. More likely, there will be a long series of incremental improvements. Each advancement will give its creator a short-term advantage in the marketplace before another firm comes up with another incremental improvement that puts it ahead. This process of incremental improvement and imitation is the way the software industry has worked for decades.


In that circumstance, it would be absurd to give the first guy to write a program that passes the Turing test a 17-year monopoly on all AI. Had he not done it, chances are a dozen other people would have within a few short years. He should only be entitled to a monopoly on his particular incremental improvements–and that’s precisely what he gets under copyright law.

Moreover, if you were going to give the guy a patent, what would its scope be? Such a patent would probably require dozens of pages of description to explain how it all works. If somebody else writes a different AI program that uses some of the same techniques and some different techniques, a judge would have to read through hundreds of pages of source code to decide if the new program was similar enough to the patent to qualify as infringing. How could there possibly be clear standards in a situation like that?

Most importantly, you don’t need software patents to ensure the inventor of the first AI program gets rich. Small, nimble startups are constantly getting rich using innovative software ideas without the aid of software patents. The marketplace gives tremendous advantages to the first company to introduce a particular type of product or service. Yes, at some point big software companies will introduce imitations, but they only start developing such imitations after the startup has gained considerable momentum. Moreover, the big companies will always be behind: they can imitate the current version of the startup’s project, but by the time they get that out the door the startup is likely getting ready to release another version.

Finally, Markham says “it’s possible to make an example where software patents make sense.” Yet all he can come up with is a goofy hypothetical example. If software patents are a good idea, then surely Markham (or other software patent defenders) can come up with at least one example of a good software patent in the real world!

  • Anonymous

    The guy you’re writing about is part of the patent crowd. In the recent discussion about the Skyline patent, I asked him how he would feel if the person who invented the linked listed, pointer, array, etc, had decided to patent their ideas. He still has not answered.

    That said, software patents are harmful, there’s really no question. At a certain point, they’ll reach a kind of terrible critical mass that will seriously reduce innovation, eventually reduce hiring, and of course, spread fear throughout the industry. We may already be near that point. Software patent holders are parasites. Their “unique” ideas take advantage of the combined work of thousands of other people. So, while software patent parasites unquestionably rely on the generosity and good faith of others in the software industry, they offer none themselves. That’s why they’re parasites. Tapeworms. Heartworms. Whatever. I’m not sure what’s the best comparison.

    Before anyone thinks this is more “chicken little talking about the sky”, remember, as software patent litigation increases, it WILL have an effect on innovation. Innovation helps drive increases in productivity. Productivity increases result in a higher quality of life. Of course this is just basic economics, no doubt it’s of little concern to software patent parasites. I would encourage software patent parasites to think about what will happen to innovation, little by little, if people and companies become afraid to innovate when it means being slapped with a patent suit.

    If you’re a software patent holder, you should hang up your keyboard. Software patents will seriously damage the software industry.

  • Anonymous

    The guy you’re writing about is part of the patent crowd. In the recent discussion about the Skyline patent, I asked him how he would feel if the person who invented the linked listed, pointer, array, etc, had decided to patent their ideas. He still has not answered.

    That said, software patents are harmful, there’s really no question. At a certain point, they’ll reach a kind of terrible critical mass that will seriously reduce innovation, eventually reduce hiring, and of course, spread fear throughout the industry. We may already be near that point. Software patent holders are parasites. Their “unique” ideas take advantage of the combined work of thousands of other people. So, while software patent parasites unquestionably rely on the generosity and good faith of others in the software industry, they offer none themselves. That’s why they’re parasites. Tapeworms. Heartworms. Whatever. I’m not sure what’s the best comparison.

    Before anyone thinks this is more “chicken little talking about the sky”, remember, as software patent litigation increases, it WILL have an effect on innovation. Innovation helps drive increases in productivity. Productivity increases result in a higher quality of life. Of course this is just basic economics, no doubt it’s of little concern to software patent parasites. I would encourage software patent parasites to think about what will happen to innovation, little by little, if people and companies become afraid to innovate when it means being slapped with a patent suit.

    If you’re a software patent holder, you should hang up your keyboard. Software patents will seriously damage the software industry.

  • Steve R.

    I am in full agreement that the patent system has been totally debased. To a degree I am repeating my earlier post where I talked about a hypothetical patent for a water pump. I believe that we are overlooking a key issue that is you can patent a specific model of a water pump, but you cannot patent the concept of a water pump.

    The software industry seems to believe that patent system, as currently implemented, gives them an “intellectual property right” to abstract concepts that are “obvious” to anyone developing a program to undertake a specific task. Based on this absurd logic, no one would be able to build a water pump, other than the so-called patent holder. It is patently wrong for someone to have a “lock” on a concept.

  • http://www.techliberation.com/ Tim

    An excellent point! I think the problem is that in software, there isn’t a clear distinction between an “idea” and its implementation. Because of the way computers work, implementing an idea just means describing it in detail in a language the computer can understand.

  • Steve R.

    I am in full agreement that the patent system has been totally debased. To a degree I am repeating my earlier post where I talked about a hypothetical patent for a water pump. I believe that we are overlooking a key issue that is you can patent a specific model of a water pump, but you cannot patent the concept of a water pump.

    The software industry seems to believe that patent system, as currently implemented, gives them an “intellectual property right” to abstract concepts that are “obvious” to anyone developing a program to undertake a specific task. Based on this absurd logic, no one would be able to build a water pump, other than the so-called patent holder. It is patently wrong for someone to have a “lock” on a concept.

  • http://www.techliberation.com/ Tim

    An excellent point! I think the problem is that in software, there isn’t a clear distinction between an “idea” and its implementation. Because of the way computers work, implementing an idea just means describing it in detail in a language the computer can understand.

  • http://www.techdirt.com/ Mike Masnick

    Wow, wow, wow! I can’t believe that Markham goes off on you for focusing on the claims.

    When the pro-patent crowd goes off on me, they very often claim the exact opposite. That I only focus on the description and ignore the claims.

    I get the feeling that this is another example (like with DRM) where the other side keeps flipping what’s important based on how you argue with them.

    What the pro-patent crowd always screams at me is that the ONLY thing that matters in a patent are the claims, so for him to go off on you saying that’s wrong is pretty funny.

  • http://www.techdirt.com/ Mike Masnick

    Wow, wow, wow! I can’t believe that Markham goes off on you for focusing on the claims.

    When the pro-patent crowd goes off on me, they very often claim the exact opposite. That I only focus on the description and ignore the claims.

    I get the feeling that this is another example (like with DRM) where the other side keeps flipping what’s important based on how you argue with them.

    What the pro-patent crowd always screams at me is that the ONLY thing that matters in a patent are the claims, so for him to go off on you saying that’s wrong is pretty funny.

  • Steve R.

    Question. To my mind a patent can only be granted to a physical device (water pump). Software (source code) is akin to a book. As a compromise, it would seem then that specific lines of code could be “protected” under copyright law. This assumes that we have a reasonable copyright protection law, lets say five years NOT the current absurd, I believe, 99(??) years. Furthermore, the “task” that the software is designed to accomplish (flight simulator) can NOT be protected. Reverse engineering, as a form of innovation, must be protected.

  • Steve R.

    Question. To my mind a patent can only be granted to a physical device (water pump). Software (source code) is akin to a book. As a compromise, it would seem then that specific lines of code could be “protected” under copyright law. This assumes that we have a reasonable copyright protection law, lets say five years NOT the current absurd, I believe, 99(??) years. Furthermore, the “task” that the software is designed to accomplish (flight simulator) can NOT be protected. Reverse engineering, as a form of innovation, must be protected.

Previous post:

Next post: