The original idea of the patent system was to stimulate innovation and research by awarding innovators and researchers with a time limited monopoly on their ideas in return for them disclosing those ideas to the public. The feared alternative was for this knowledge and innovation to be kept secret as trade secrets by the people and companies making them, and these great ideas then never reaching the general public to be built upon by others and through that generating even more wealth for society than otherwise would be the case. The original idea was in other words not as much to protect ideas from being used by others, but to encourage the publication of the ideas so they could be used by others. I doubt anyone with inside knowledge of the industry can say that goal is achieved by the software patent regime in the US today.You want to steal my great idea
A very typical argument you get when arguing for the dissolution of patents is that you want to prohibit the people who come up with good ideas and do research from cashing in on their ideas and research. Many outright accuse you of wanting to be able to steal other people's good ideas. Such arguments can be hard to counter if you are taken unaware. One natural response I see many people come up with is trying to explain how all ideas build upon earlier ideas and that no idea is truly original and as such nobody is stealing nobody else's idea. I know I have fallen into that trap myself at times. The problem with this line of reasoning is that its too abstract so unless you are discussing with a true intellectual it will fall on deaf ears and the admission that they are standing on the shoulders of giants come hard to many.
The counter argument need to instead be that, yes of course we should help inventors to earn money on their inventions, but in the case of software, patents doesn't do that. Making software today is complex and a program is using a multitude functions and algorithms to be able to do what it does. If you do come up with a really good idea while making your software, which you can patent, you will not really be able to cash in on it, as your established and bigger competitors will have patented so many of the other things your program needs to do that you can't really use the patent against them to get ahead anyway. You can of course cross license with your competitors, but then the patents just mean forcing businesses to spend more money on legal fees and bureaucracy, which is not exactly the perfect crib for the generation of new ideas.
Instead the situation is that you have so many patents, many highly questionable and obscure, which can be used against you even the value of getting to market first with your idea is lost because as soon as people see you earn money the vultures of the software patent field will be upon you. A good example here is a Microsoft patent where they clearly have taken the ideas of the KDE developer Torsten Rahn made some small changes to it and patented it just before the original developers had reached the stage in their development cycle where it became evident that those extenstions where the logical next step, at which point they implemented them not knowing Microsoft had patented the improvements in the meantime. So instead of software patents protecting the inventors it have become a tool of idea theft.
And when these things happen, for the small inventor who came up with the original idea the legal cost of fighting these patent lawsuits will be so high that in most cases they are forced to leave the thief with its loot. And such a system is not helping the inventors to earn money on their ideas.
On the other side the software market where things moves so fast, there is much more value in being able to bring your great ideas to market quickly and without hindrances, so a software market without patent monopolies will reward innovators much more than the current market would. In fact if you look at the history of the computing sector you would see that it have performed so well and made so many smart people rich, not because they where able to take out patents, but rather the opposite. The lack of ability to lock in customers and lock out competitors have created most of todays success stories. Would the IT sector be where it was today if Xerox had patents on the making a windowed GUI, if IBM had patents on their original PC BIOS, if Apple had a patent on using the mice, if AT&T had patents on large parts of Unix and so on. The ability to inventors to build upon what the rest of the industry did and add their own great ideas to the mix rewarded the innovators and created most of todays giants.
True enough you could claim that many of these cases where about people stealing other people's ideas. On the other side there is clearly no other sector which have rewarded smart and innovative people with more money than the IT sector during this period. Smart inventors are best protected by being allowed to run free with their ideas, and they can't run free in the IP minefield the computing sector is becoming. The case for software patents rewarding the innovative can only be true if you assume that the smart and innovative people would only come up with one good idea ever. In such a scenario absolute protection of the idea would be more valuable than being able to bring your ideas to market. But the fact is that smart people as a consequence of being smart come up with not one, but a lot of ideas.Don't let the discussion glide out
To sum up with article I would like to remind everyone that the most important thing to do when discussing anything is making sure the discussion is narrow enough to be able to discuss it in a meaningful way. Firstly make sure the discussion is about software patents and not 'intellectual property' and make it clear that you are talking about software patents and not patents in general. For my own part I say that I know the software sector and how patents work out there so that I can discuss, but wether patents work better or worse in other sectors I leave to people in those sectors to bring up as they know their fields and how patents impact those fields much better than I do. While much can probably be said about copyright, trademarks, trade secrets and patenting in other sectors the problem spaces tend to be very different and not really meaningful to discuss in one go. To often have I seen situations where people could probably been brought around on the issue of software patents, but it never got to that as the discussion got sidetracked by discussions on copyright length or trademark protection. Or good arguments against software patents not getting through due to the debate bringing in examples from other sectors facing very different conditions and constraints.
The author, Christian Schaller, is Business Development Manager for GNU/Linux multimedia specialist Fluendo. He serves on the GNOME Foundation board of directors.
If you would like to see your thoughts or experiences with technology published, please consider writing an article for OSNews.