Speaking of software patents | Opensource.com

Speaking of software patents

Posted 08 Aug 2011 by 

Rob Tiller (Red Hat)
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The software patent debate sometimes seems awfully one-sided. Passionate opponents carefully explain that software patents hinder innovation and supporters of the status quo ignore their arguments. Meanwhile, vast sums of money that could be used for innovation are diverted by patent lawsuits of competitors seeking to block other competitors and of non-practicing entities exploiting the system. The open source community generally gets this, but much of the citizenry has no inkling that there's even a controversy.

In the last few days there have been signs of life in the debate, with reports in the mainstream media focusing on criticisms of software patents. From The Economist: "At a time when our future affluence depends so heavily on innovation, we have drifted toward a patent regime that not only fails to fulfil its justifying function, to incentivise innovation, but actively impedes innovation."

From NPR's Planet Money: "[W]e talked to a half dozen different software engineers. All of them hated the patent system, and half of them had patents in their names that they felt shouldn't have been granted. In polls, as many as 80 percent of software engineers say the patent system actually hinders innovation. It doesn't encourage them to come up with new ideas and create new products. It actually gets in their way. Many patents are so broad, engineers say, that everyone's guilty of infringement. This causes huge problems for almost anyone trying to start or grow a business on the Internet."

Meanwhile, Professory Mark Lemley recently published a fascinating article titled "The Myth of the Sole Inventor." A fundamental assumption of our patent system is that inventions are uncommon and unlikely to happen without the incentive of a patent monopoly. Lemley assembles an overwhelming body of evidence that undermines that assumption. Most new technologies are invented more or less simultaneously by persons working independently. It is an incremental process, building on preexisting technology. As Lemley puts it, "Invention appears in significant part to be a social, not an individual, phenomenon."

One by one Lemley takes on the iconic examples of pioneering inventions, including James Watt and the steam engine, Eli Whitney and the cotton gin, Samuel Morse and the telegraph, Alexander Graham Bell and the telephone, Thomas Edison and the light bulb, and the Wright brothers' airplane. In every one of those cases, there were competing inventors independently developing similar ideas at about the same time.

As Lemley shows, much innovation is not an extraordinary occurrence, but rather is commonplace, and likely to happen without the patent system. This suggests that the patent system contributes little to innovation, and may actually be a hindrance. Indeed, as Lemley's case studies indicate, the broad patents granted to famous inventors at times blocked superior competing technology and slowed progress.

This understanding of innovation is consistent with open source software development, where innovation is incremental and constant, and in no way driven by the incentive to gain a patent monopoly. Open source developers are by definition sharing their source code (that is, their inventions), and the last thing they want to do is prevent others from using the code by force of a patent. The enormous contribution that open source software makes to economic development and prosperity is by now beyond debate. The same is not true of software patents. So shouldn't we move forward with the debate?

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9 Comments

sughyosha
Community Member

Dear Mr. Tiller, I would like to draw your attention to a specific IPR issue facing many Open Source Users. When Oracle acquired SUN, they got MySQL as baggage, baggage that one might add - millions of Sys-Admins and their User Groups were seriously dependent on.

Today, Oracle has unilaterally changed the MySQL Licensing terms and in the process adopted a legal stance that forces any "Private/Bespoke System" User of MySQL flee rapidly.

The issue I would like to emphasise is that MySQL would not have got to into widespread use without the open and intense participation of its Users - both Open Source Projects and "Private/Bespoke Systems".

It is inevitable that Users in a MySQL type scenario will wonder how the Patent System can be altered to accommodate the Fully Participating Users of Open Source Projects, who do not have Investor stakes or any influence on the owner/managers of the project?

Kind regards
Peter

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Joe Dyck

The biggest problem with the patent system is that it is not honoured worldwide. What seems to happen is manufacturers in "So Called" third world countries seem to be free to copy anything, and worse yet improve on it. This puts the world that honours patents at a huge disadvange. Unless there is a level playing field across all borders, the patent system enmires developed countries, making them uncompetitive in the world marketplace. China is by far the biggest culpret when it comes to intellectual property of any type. The stupid thing is that our companies go to China, set up an industry, which runs 8 hours a day producing "our product" and 16 hours a day producing counterfeit product.

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kwhitefoot

"and worse yet improve on it"
I'd like to think that you were being ironic, but I have a suspicion that you mean to be taken literally.

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DrOwl

"not honoured worldwide", thats a fantastic idea why dont we have a world wide patent office, that way the first "person" who "comes up" with the idea can register it as there own and no one else can use it with out there permission. Oh and of course the most logical place for this office to be based would be the USA and well it would cost a lot to administrator this system so we could say charge $10,000 to register "your idea" that way it would be fair for every one. Well ok "maybe" this would be slightly biast to say "people" in the USA who have loads of monie but hay!

Or maybe the whole point is that these unique ideas are not so unique, they are formed from seeing other "unique" ideas "standing the the shoulders of giants" maybe just a little?

If some one can improve on something and shair it with us do we all not gain?

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Yermo

In an attempt to explain the problems involved in software patents I wrote an article that seems to get the point across: http://appupdate.com/fv-b-1-5/why-software-patents-are-a-terrible-idea--...

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Joe Dyck

What I meant to say is patents should be abolished. Countries that continue to use them are at a tremendous disadvantage, getting their companies snared up in legal battles, instead of spending that same effort on R&D for new products and inventions.

If the patent system should be phased out and perhaps only be good for three years after the "invention" is first sold in the marketplace.

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stites
Open Source Champion

One of the places where nothing has been heard about the software patent controversy is the U.S. Congress. A few years ago I tried to mount a lobbying effort to get Congress to abolish software patents. I came to the conclusion that in order to get your message through to Congress you need either to hire a lobbyist or stage street demonstrations.

I suggest that the open source companies who are strongly against software parents, such as Red Hat and Google, pool the costs of hiring a lobbyist. We need to get the anti software patent message in front of the Congressional and Senate subcommittees that actually write U.S. patent law.

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Steve Stites

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Mike_T

One only need to look at the terrible state of the patent litigations in the US to see how wrong it is. There is no need to look into how broad a patent is, there is no need to look how rare an invention is. The actions speak for themselves. It is a broken and awfully abused system. For one, the practice of buying patents should be banned. If an inventor fails to use the awarded patent in any meaningful way (let's say within three years), then it should fall into the public domain per default. Plain and simple. The whole notion of "patent portfolios" is downright disgusting.

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Unidentified

One way to deal with the trolls (non practising entities) is simply to restrict damages in patent litigation to actual damage suffered. NPEs don't sell products in a market, so they don't actually suffer any damage. This would kill all the trolls and probably bring other patent litigation back down to earth too.
CL

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Rob Tiller is vice president and assistant general counsel for Red Hat, where he manages patent, trademark, and copyright matters. He is a frequent speaker and writer on open source legal issues. Before coming to Red Hat, he was a partner with the law firm of Helms, Mulliss & Wicker, PLLC, where he specialized in commercial and IP litigation. He is a graduate of the University of Virginia School of Law, and a former clerk for Justice Antonin Scalia of the U.S. Supreme Court, and Judge