Software Patents: An Affront to the Rule of Law

by on December 10, 2005

I haven’t had time to read enough to know exactly what technology Research in Motion and NTP are fighting about, but I think it’s shocking to see accounts like this of the dispute:

The patent office has issued preliminary rejections of all five NTP patents that a jury in 2002 decided RIM had infringed upon with the BlackBerry device and service.

NTP has downplayed those rulings as largely procedural, while RIM has called the rejections proof that the technology behind its popular BlackBerry handhelds and e-mail service is not stolen.

After 3 years of intense litigation, it still isn’t clear whether RIM’s technology is “stolen” or not. That should send chills down the spine of anyone who values private property and the rule of law. Perhaps the most basic characteristic of any good system of property rights is predictability. An economic actor needs to know where the property lines–physical or intellectual–are so that he can avoid crossing them without permission. Even copyright, which certainly has its share of fuzzy lines, at least has a reliable method of staying on the safe side–when in doubt, don’t make unauthorized copies. That’s not true of software patents, which can cover anything that some patent office bureaucrats decides to declare an “invention.”

So what exactly was RIM supposed to do when it first deployed this technology? Patent searches are expensive, and even with unlimited resources it’s unlikely that you could ever find every patent that could potentially be construed as infringing. Even if you could find every such patent, some patents are so vague that it might not be possible to re-design your product to avoid infringing them.

Is this really how we want to run our software industry? Do we really want to require lawyers to inspect every line of computer code to make sure a programmer didn’t accidentally “invent” something that some other company previously patented?

Software isn’t like most R&D. A large software product consists of hundreds and hundreds of components that perform various tasks. Many of these components could be considered “inventions” by the patent office. Yet it’s unlikely that any of these “inventions” are unique–other programmers, dealing with similar challenges on other projects, are likely to independently “invent” the same techniques. Indeed, programmers consider such “inventions” to be so commonplace that they don’t bother to write them down. That’s why it’s often difficult to find prior art for things that are painfully obvious to any competent programmer.

In effect, patents create a legal minefield for software developers simply trying to go about their business. Because the patent office gives out patents so promiscuously, the developer has no way of predicting when code he writes might run afoul of a somebody’s patent. That means that even if he developed every line of code himself, without looking at anyone else’s code, he still can’t be sure that somebody won’t come along and sue him for patent infringement.

If there’s a silver lining to this fiasco, it’s that all the Hill staffers, judges, and patent office bureaucrats who created the current mess will have the opportunity to think long and hard about software patent reform while they’re waiting for their BlackBerries to start working again. Geeks have been bitching about the problems with the software patent regime for more than a decade, but if our complaints won’t get their attention, maybe a judicially-mandated BlackBerry blackout will.

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