The Pernicious Issue of Software Patents

A reddit user recently invoked link necromancy on a 1994 Donald Knuth letter to the U.S. Patent Office:

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

I think software patents can help protect the “little guy”, or at least a preliminary patent registration while they get their idea out into the marketplace.

And yes, the USPO can use some refomation.

we’re steadily getting to a phase in the technology sector where everything is patented and companies have to spend thousands just to make sure that their ideas haven’t been thought of (and patented) before.

IP squatting is going to be the end of the little guys. I’m in Europe. No software patents to be seen.

Patents on software don’t actually release anything into the public domain. Reverse engineering is so easy that a child could do it and see what makes something tick.

I think a lot can be learnt from the OSS movement in this respect. Open code, no secrets and moving faster than any of the other desktop operating systems. Go figure.

As I understand it from my University days, in the UK, a Patent can be granted even if it isn’t valid. That is, it can be granted even if there isn’t an aspect of ‘innovation’ that isn’t obvious to a specialist in the field. And that’s not unreasonable - you can’t expect the patent office to be expert at everything, and the language in patents is often, well, obfuscated.

So if a patent holder believes that a patent has been infringed, they can take the matter to court. Here, the judge decides if the patent is valid, if it has been infringed, and what measures are to be taken (if any).

The problem is, litigation is expensive. It seems that some companies holding the patents on fairly basic technology (e.g. will demand money from others, but aimed at a cost that is less than litigation would be. This is either a protection racket, or a mugging. Only large companies can afford to fight such cases.

I mean, off the top of my head, there have been patents claimed for online shopping baskets, one-click buying, linked-lists, gif compression (I mean, run length encoding - come on!), online advertising, browser plug-ins… …the list is massive.

Fair patents, for genuinely innovative ideas - fine. But otherwise, the only answer I see is that costs of litigation can be passed back to the patent holder, if the patent is judged to not be valid.

Of course, everything we write is covered by copyright anyway…

I tell you what, what programmer do you know that hasn’t stolen code (leaked or provided for non commercial use)? I have, and for commercial uses. If I can find it and not have to write it myself, I will use it… That is the porogrmmer’s way, am I right?

Wow, lots of links, no original argument, and a random opinion at the end. Great!


Uhh… no I don’t think that is the programmer’s way. Most of the code I have to sift through is complete crap, I don’t trust any code unless I wrote it. I hate when I have to fix something or redo something someone else wrote, it is always garbage.

The idea that patents protect the “little guy” is just false. One need only look at who gets the most patents to determine that. I deal with patents a great deal, and let me tell you than MANY patent attorneys won’t even deal with “the little guy” because their expectations are entirely unrealistic. (Case in point, here in Chicago a month or so ago, one of the “little guys” was so pissed off about his lack of success, he burst into the attorney’s office and shot a bunch of people.)

The idea that the little guy having a patent prevents Big Mega Corp coming along and reverse engineering your patent and screwing you is also almost always completely false. A good patent lawyer can string the “little guy” along for years, until he bankrupts him, or more likely settles in a completely unbalanced way. Often, I might add, that it is a lot of work for Big Mega Corp to reverse engineer (both the item and the production process) so Big Mega Corp buys out the “little guy.” In doing so, he buys the method, the product and the IP (which he then uses to squash the next “little guy”)

Patents, despite their reputation do nothing for the little guy. The number of “little guys” who made their fortune off one patent is very, very small. The idea of Uncle Joe working in his garage to discover the next big thing, then patenting it and making a billion or two is a romantic wrongheaded notion, that again, almost never actually happens.

Patents are a tool for big guys to squash medium guys (who don’t have enough patents of their own to protect themselves with cross licensing deals.) Patents are also a tool used by dying corporations (or corporations that should die) to try to survive a little longer. Patents are also tools used by big guys to hamper competition from other big guys (not stop it, because patents aren’t strong enough to do that.) Patents are finally a tool used by patent trolls to drain the blood our of our economy.

Despite their original intent, patents do not encourage innovation. Just recently, the GAO (hardly a shill for the anti patent movement) released a study that indicated that the poster boy for patents, the drug industry, had their innovativeness significantly decreased by the patent laws.

There is nothing positive about patents of any kind, and software patents are the worst kind of all. They are a Damoclesian sword hanging over the heads of every innovative start up in the country.

Stephen, you are free to share your visdom. Right now you just come off as being stupid.

Am I the only one who thinks that patents per se are wrong?

I think patents were started as an act of charity, to help the little guy grow. But now it’s abused to the extreme.

Why oh why should I stop making something because you thought of it first? there is no rational argument for that. Patents were started to help the little guy survive “the big fish”, after that it’s his problem to survive in the market.

If you have the patience/interest for a lengthy academic article dissecting software patents in detail, have a look at .

I work for a very small software company (our RD dept is four people). We have to spend money to get software patents to protect us if somebody were to attack us, so we could try to cross-license patents instead of simply being destroyed. Even so, we would probably be destroyed. The simply fact is that the existence of Software Patents ensures that any of the major players could demolish us with their patents whenever they chose to do so. It’s not possible to write an application without violating patents of the big software companies (and some patents of patent trolls).

Software patents only cost us money and security and don’t give us anything in return.

Software patents don’t need to be fixed. They need to be taken out, shot, and then their heads need to be chopped off and wooden stakes need to be driven through their hearts just to be sure that they can never come back.

Paul Heckel puts lots of baseless oppinions there:

"what motivates people is not inherently different"
Agree with that… But:

"industry life cycle is not inherently different"
Yes, it is. There is no way he didn’t notice that the software indutry lacks an industrial facility.

"marketing and business strategies and tactics are not inherently different"
I can’t say they are not inherently different. But they are currently very different. Most software sells because of lock-in, most consumers don’t know what they are buying before the payment (and I can’t see how they could) and hardly evaluate the concurrent options (since they know none of them, not even the one they are buying).

"the law and policy issues are not inherently different"
Software is protected by copyrights, and can be copyied by near nothing. How can he ignore that?

"The technology is not even new. Software has been around for 40 years."
Ok, maybe he thinks that 40 years is enough time to a society adapt to anything. Hint, the French Revolution created a “fast” instability period of more than 70 years until society stabilized. The Industrial Revolution happened through centuries (people disagree on the details). Society can adapt to most (small) changes on 40 years, but I really can’t agree that software is one of them.

I’m not well read on this, admittedly, but from my point of view…

The problem isn’t patents in general. It is the misapplication of patents to ideas that many people could have done. One of the basic principles in assigning a patent is that the average person in the industry could not have thought of it. But that principle seems to be ignored. Instead, people get patents for being first, not for being brilliant.

The second problem is people trying to get rich off patents. There is no reason a patent holder cannot just say, “Sure go ahead and use it… just give me credit.”

I’d suggest two simple changes to fix things:

  1. Disallow software patents on any technology/platform less than 5 years old. That gives everyone time to work with it, and develop it. THEN if you can revolutionize it more than everyone else has in years, get your patent.
  2. Put a cap on licensing fees to use a software patent, and require patent holders to allow usage. I do think it is fair for brilliant programmers to gain from their work. But not at the cost of stifling others. Just a few hundreds dollars perhaps. And the money should go to the programmer, not their corporation. Corps make enough money already.

On the matter of principle, sure patents seem justifiable, but their application is so bad the only option most people see is to scrap the whole system.

It sure looks like the problem is the USPTO, but while I think they could do a better job, they’re fighting a losing battle. Firing every USPTO employee and replacing them with 5 times as many examiners, every one 5 times as smart will make things better. But it will still suck.

If you want software patents to survive, you have to change the system the USPTO supports and is supported by. I don’t think it’s a little tweak here, or there of wait times, injunction limitations, filing costs, etc. You need some new options.

A little under a year ago I was thinking on this topic, and had two such ideas. Everyone I’ve talked seems to think they make sense, but thinks no one would ever agree to them. I disagree however. It’s hard to break past that initial barrier with unconventional ideas.

Anyhow the first idea, was to setup the system so that most patents would be severely limited, and thus the impact of a mistake by the USPTO limited. If that sounds interesting, the whole idea is at:

And the other one was to make a concerted effort to bring patents back to the public domain, while compensating the patent holders. You can find the rest of the idea at:

Mr. Bambrick over at SecretGeek comes at this from a different angle. It’s one which I think is very important, and is probably one of the key reasons that Mr. Knuth held the position he did on software patents.

The argument is based around the idea that a software algorithm is essentially just math. I think Knuth’s Pythagorean Theorem analogy is a great one, but I also think that offering such a simple example is just asking for it to be dismissed as ridiculous.

I think a much better example might be to consider what would have happened if Newton and/or Leibniz had been allowed to patent the algorithms for calculating integrals or derivatives. It’s not as trivial as the Pythagorean Theorem, and yet without it, we’d probably never have made it through the industrial revolution.

The patent office is much slower than the rapid pace at which software progresses. How can you expect them to be aware of all the prior art and know whether to grant patents to software or not?

Algorithms could not be patented originally. What could be patented are mechanical “embodiments” of these algorithms. Then recently new patent categories opened up such as the method patent. Now we can patent one-click technology, YAY!

Companies should compete on what they offer to people, not prevent others and form effective IP monopolies. Squatting IP is now possible, in fact pretty lucrative if done right. Kind of seems like Standard Oil and ATT back in the day.


Let’s talk about THAT!

(btw it wasn’t my idea originally, but I forgot to attribute it to)

re: “Why oh why should I stop making something because you thought of it first?”

Because otherwise, when you, the Small Up-And-Comer, invent the Next Big Thing, I, the Fancy-Pants-Corporation, can just steal your work (if you are very lucky, I might buy one or two to reverse-engineer), get one of my factories to crank out a few million copies, and bury you in the dust.

Congratulations, you’ve just given me free RD.

That’s the point of patents, folks - to make sure that the person who invents the Next Big Thing actually benefits from it.