The Coming Software Patent Apocalypse

Every practicing programmer should read the Wikipedia article on software patents, if you haven't already.

This is a companion discussion topic for the original blog entry at:

So to keep with the nuclear/cold war analogy, if the incumbents are like the USA and USSR, what does that make the patent trolls? Terrorists? Al Qaeda? Seriously…

I agree that something has to be done, but what?

Fight and win a major landmark case in the Supreme Court to make all software patents unforceable in court? This isn’t barely likely, just look at this page: and the number of successful litigations.

Revoke all existing software patents and disallow new software patents? Just continue coding and pray that your product won’t grow so big as to attract the sharks?

There’s plenty of talk on who’s for, and against software patents, who’s participating and who’s not - but there seems to be very little discussion on actual methods of solving this problem in the long run, and how people who are creating software right now can do about the problem.

Or have I missed out on the discussion?

i’d be more extreme: find a way to break all RSA codes, patent it, and then blackmail the government to break all patents or else sell it to terrorrists.

One huge problem with the patent mess is that many major research universities have developed revenue systems based on patent licensing and are now actively lobbying against patent reform. There was recently a bill in Congress that was trying to correct a lot of problems with the current system, but after the UCs and Stanfords complained it was turned into a meaningless band-aid. It’s really disgusting that institutions were the advancement of knowledge is the alleged main objective are acting to chill innovation for their own benefit.

Are there any non-profits directly involved in patent reform? I looked into this a while ago and couldn’t find anything. This sounds like something the EFF could be involved in but they seem more interested in defeating meaningless TSA directives than on problems as large and menacing as this.


Could it be because cooking and fashion are considered creative activities (like painting) and writing software isn’t? If software is perceived like engineering, then it’s normal that people try to patent it and that patents are granted.

Or it could be also that fashion and cooking are so ephemeral (a dress lasts a season, a dish lasts until you’ve eaten it) that patenting would be essentially worthless…

Patent of software in Australia is not permitted - you can copyright specific code but not own software ideas. Software in Australia is treated with identical rules as literature! You can’t copy it word for word, but can base a NEW piece on the ideas of an original.
Thats how it should be! Allow others to expand on new ideas, rather than squash them.

I can kind of see Sebastiano’s point but at the same time, the way that a program is put together is a creative effort as much as it is anengineering effort, and that while a dress may be in fashion for a season it will last longer than that unless otherwise destroyed. At the same time the a recipe can be used over to make the same dish time and again.

The real point is with the way that software gets outdated just like the hardware does is there really any difference between software, clothing, and a recipe book?

No body makes software alone. We communicate, we help each other on forums, blogs, etc.

Imagine if you were helping someone with something he’s working on, and find out that you can’t use it because he patented it, it makes you think, what will the future be like, will people be afraid to tell their ideas fearing they could lose them instead of sharing them.

If that happens, Programming won’t be easy to learn, and certainly not fun anymore.

I would dare to say we have no other area of law where there are such strong implications (the government enforcement of a broad, largely undefined monopoly) on the basis of such weak justification. It’s possible that patents will lead to greater innovation, so patents are the law of the land. A lot of other things are possible but that doesn’t mean they are the law.

Wouldn’t it make sense to at least study the issue in depth a little bit? Shouldn’t there be a little better justification than giving simplistic examples where it is possible for patents to make us better off?

May be we need a Patent Reduction Treaty :slight_smile:

(I am not in favour of patents myself, it’s better to have no system than a bad system, but here is a possible counter-argument)

There are examples of innovation the may not have happened without patents. Take the all ubiquitousness mp3 format. Would Fraunhofer have spent millions developing it if there is no way for pay back? Spend all this money and do all this hard work to have someone else reimplement the algorithm and give it away for free (“lame”).

What is the answer to this? Enforced RAND licensing? Then what about F/OSS software? How do we support expensive research and innovation?

Go a href=""PATO/a, the idea is older than ten years and still not implemented. Clearly, companies registering software patents are hypocritical when they claim to do it for defense purposes only, lest a PATO would exist by now.

Insightful article as usual Jeff.
Don’t know about the situation in the US, but here in the UK we have the additional absurdity of copyright law, devised to protect written works, also applied directly to software. I was recently involved in a legal case where there was much effort expended working out how much of a particular database schema was copied into a server’s memory - a measurement both conceptually vague and (virtually) impossible to determine in practice - but nevertheless the required means to gauge the extent of infringement.

Id the USA’s software patent madness continues I can see all software development moving to countries that do not have software patents, like … Oh yes, everywhere else!, This will still make it a little difficult to sell software in the USA but “The rest of the World” is a rather large market and the USA can be ignored.

Say goodbye to innovation in the US software industry…

I have been saying for years I believe it is impossible for ANY non-trivial software to be developed without infringing on someone’s patent, somewhere. It is indeed mutually assured destruction.

Wait until you notice someone has a patent on parts of your DNA.

And software patents aren’t restricted to the US. While software patents don’t officially exist, ‘computer-implemented inventions’ can be patented, and the german and european patent offices even grant patents that are quite possibly in contradiction to the ‘no software patents’ policy.

There’s an error in your article. You said:

“There was a hullabaloo recently about Microsoft rattling their software patent sabers. Sadly, there’s nothing notable about it; this is simply business as usual for everyone in the software industry. Software companies are forced to build huge stockpiles of software patents solely to be used as deterrents.”

Rattling sabers is an offensive move, not a defensive one.

Bill Gates quote:

“If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today. … The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors.”

Hello, hypocrisy.

“There are examples of innovation the may not have happened without patents. Take the all ubiquitousness mp3 format.”

Which isn’t even that good of a format. OGGs have superior compression in most cases and is open source. Think of how many songs you could fit on your ipod if OGG had become the dominant file format, instead of mp3, when you consider the songs are 2/3 the size.

I’m not even sure that copyright for software is a good idea, or at least not for the amount of time written/performance/etc art is. Look at Windows 3.11. When it finally enters public domain, who is going to care? I doubt anyone is going to have the hardware to run it by the time that happens.