Google’s First Software Patent

A couple of weeks ago, Patrick Ross mentioned a talk given in Brazil in defense of software patents:

GWU Law Professor John Duffy defended software patents. A good example of a software patent, he said, is Google’s first patent. It patents their search approach, which starts with a basic search, then involves a search within the search results based on popularity. That innovation has led the company to a market cap of $123 billion, but couldn’t be protected by copyright because the method could be written in a thousand different ways.

Intrigued, I wrote him asking for details. He kindly pointed me to Duffy’s PowerPoint slides.

I’m not impressed. Here, literally, is the slide making the argument about Google:

Patents can make you rich and famous.

Example: Google = $123 billion

Google is built on a a few key software patents.

Now, it’s probably not fair to judge a presentation from its PowerPoint slides. I’m sure Duffy’s presentation was far more nuanced than this simplistic rendering suggests. Still, even taking that into account, this is pretty weak sauce. You can’t just attribute Google’s market cap to its patent portfolio, as though that settles the matter. Duffy’s slide presents no evidence whatsoever that Google’s patent was key to its success. It’s the crudest kind of post hoc ergo proctor hoc fallacy.

It’s hard to see how Google’s story would have been any different in a world without software patents. The slides offer no evidence that any companies have actually been deterred by the existence of Google’s patent from producing a Google knock-off. If you examine the patent in question, it’s far too general to be of much use to someone wanting to do so. What makes Google so great isn’t the general concept of its search, but its superb implementation. They were the first company to take the general concept of treating links as votes and implement it in a way that could scale to billions of pages.

But of course, implementation details are protected by copyright. Which means that in a world without software patents, Google would have gotten along just fine.

Moreover, even if we assume that Google’s market cap is partly attributable to its patents (which I think is unlikely) that doesn’t prove that it’s a good thing. There are all sorts of government programs that make corporations wealthy. Ethanol subsidies have been good for ADM. Defense spending has been good for Northrop-Gruman. New York taxi medallions have been good for those fortunate enough to have one. The policy question isn’t whether these programs serve the companies that benefit from them, but whether they promote innovation and economic growth. I can’t see any reason to think that the availability of software patents makes future Googles more likely. To the contrary, the primary effect of software patents appears to be a kind of rent-seeking, wherein software trolls obtain software patents to extort legitimate companies, and legitimate companies are forced to acquire software patents (and retain lawyers) to defend themselves.

There might be an example of a legitimate software patent out there, but this sure isn’t it.

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