Here are my thoughts on Solveig’s comments:
The focus on software patents in the oped is, however, rather misleading; the problems of the patent system are broader than that, affecting tech in general and not software in particular. Furthermore, these problems are not inherent in any patent system, but are peculiar to our system, because of problems with the way it is administered. Note that in Lee’s 1991 quote from Gates, Gates is concerned not that software patents are inherently bad, but that the way they have been implemented has not worked out.
It’s certainly true that the problems with the patent system extend beyond software patents. But I don’t think this is a fair reading of Gates’s memo. Later in the same paragraph I cited in my article, he wrote:
A recent paper from the League for Programming Freedom
(available from the Legal department) explains some problems with the
way patents are applied to software.
He was almost certainly referring to this paper, published about 3 months earlier. The first paragraph of that paper is:
Software patents threaten to devastate America’s computer industry. Patents granted in the past decade are now being used to attack companies such as the Lotus Development Corporation for selling programs that they have independently developed. Soon new companies will often be barred from the software arena–most major programs will require licenses for dozens of patents, and this will make them infeasible. This problem has only one solution: software patents must be eliminated.
Now even I will admit this was a bit alarmist, but if Gates was citing it favorably, it’s awfully hard to imagine he wasn’t at least sympathetic to the view that software patents were inherently bad.
Solveig continues:
It is doubtful whether it would have been possible to know in advance the “correct” answer to the question of whether copyright law or patent law “ought” to be applied to software. There are arguments that cut both ways. There is no evidence that going back would offer an improvement.
I would be curious to know which arguments cut in the pro-software-patent direction. I mean, I’ve offered more than two dozen examples of software patents, the vast majority of which appear to me to have stifled innovation. So I’m not sure what she means when she says there’s no evidence that going back would offer an improvement. At a minimum, it would save society the costs of indisputably wasteful cases like NTP/RIM, Eolas/Microsoft, Verizon/Vonage, and dozens of other examples I document above. On the flipside, I have yet to see software patent advocates offer a single compelling example of a software patent that clearly enhanced technological progress. For example, they’ll occasionally throw out Google as an example, but as I’ve discussed before, this example doesn’t withstand close scrutiny. To the contrary, Google is an example of the fact that companies start patenting only after they’ve become large and successful. Google filed for its first patent in March 2000, almost a year after they’d raised $25 million in capital from Sequoia Capital and Kleiner Perkins Caufield & Byers. And they didn’t receive their first patent until 2003, at which point the company was already worth millions of dollars.
So I’d be interested to know what arguments point to patents being more appropriate than copyrights for the software industry—or why both are necessary. Solveig and others have argued that software patents aren’t as bad as I say they are, which may very well be true. But so far I have yet to see a clear explanation of what problem software patents solve. Clearly, software patents cause some problems, so absent a good reason to keep them, isn’t it obvious that we’d be better off without them?
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