Summary: Progressive thinkers seem to have decided to leave software patents behind, especially in an age of mass collaboration and ubiquitous computing (where software is a commodity)

IT IS interesting to see how public opinion changes over time, especially regarding controversial issues such as abortion, slavery, death sentences, same-sex marriage, and war. But one subject that never hits the mainstream (meaning corporate media like CNN) is the subject of patent monopolies. Maybe it is too profound for the common audience to master and get involved in. Who knows, but surely the copyright debate is at least starting to take front stage and "modernisation" of copyright law (meaning reform) is occasionally being proposed, with so-called 'pirate parties' cropping up all over the world, even in the United States (as of very recently). By contrast, patent reform is a sordid mess that can never get though.

In order to track what people think of software patents (and it is important to set aside patent lawyers and monopolies due to vested interest), Techrights keeps an eye on patent news and yesterday it found this:

It was an exciting time in a young industry, defined by its innovation, before it was reduced to two choices, Microsoft or Apple. We were marketing a graphics application created by Cunniff, with innovations that have not been equaled today. Numerous concepts that Cunniff developed were certainly patentable; however, we felt that software patents stifled innovation and did not pursue them.

They felt right.

Former Microsoft employee Keith Curtis has also just given a Microsoft-boosting Web site a decent piece opposing software patents. Too bad he is promoting a Microsoft patent trap, Mono (our main source of friction with him). From his piece:

Software patents are frequently in the technology news, a multi-billion dollar licensing model existing in parallel to the traditional ways people acquire technology. Very few patents are enforced, but those that are often result in the transfer of secret and large amounts of money — not connected to the amount of work required to create the invention, but to the thickness of the wallet of the defendant.

[...]

It is interesting that a man like Nathan Myhrvold would start a company whose primary purpose seems to be acquiring software patents. It means that one of the deep thinkers of Seattle does not realize that software is math. In the 1930s, Alonzo Church created a mathematical system known as lambda (λ) calculus, an early programming language that used math as its foundation, and was Turing-complete, which meant it could express any program written today.

See our Intellectual Ventures (IV) wiki page as we wrote about the subject for 5 years and it's not getting any better now that IV is reportedly extorting Linux.

In other news, Peer to Patent has been mailing people, yours truly included. It tries to promote its project which seemingly fights against software patents but actually only legitimises some of them. Andy Oram (of O'Reilly), a longtime supporter of software patents, has just written about this and he seems to be softening too (he is being vague this time, so it can be subjected to misinterpretation).

I am not a zealot on the subject of software patents. I've read a lot of patent applications and court rulings about patents (see, for instance, my analysis of the Bilski decision) and explored the case for software patents sympathetically in another article. But I have to come down on the side of position that software and business processes, like other areas of pure human thought, have no place in the patent system.

Maybe Rivest, Shamir, and Adleman deserved their famous patent (now expired) on public-key cryptography--that was a huge leap of thought making a historic change in how computers are used in the world. But the modern patents I've seen are nothing like the RSA algorithm. They represent cheap patches on tired old practices. Proponents of software patents may win their battle in the halls of power, but they have lost their argument on the grounds of the patents to which their policy has led. Sorry, there's just too much crap out there.

All innovation is dependent upon prior work. That's why the idea of granting monopolies on mere improvements is a bad idea. Inventions are always aggregations of many improvements, in which case the chain of monopolies complicates things far too much. Subsequent innovation can become unbearable. In the case of software, very fundamental ideas are treated as patentable merely because they are a digital equivalent of something which has existed for centuries if not millennia, e.g. the progress bar. ⬆