Software Patent Myths

I'm been collecting some of the more amusing myths about software patents. Here is what I have so far, with a short argumentation against each one.

• The patent system exists for the benefit of society.

The "broader benefit of society" is sometimes held up as the basis for the patent system, but in reality patent offices and patent law exist for the benefits of their "clients", which means patent owners.


• Patents are good for innovation in any domain.

Every domain has different needs. Would patents help artists, composers, filmmakers, writers, cooks, atheletes? Patents are not a universal panacea. Before we can contemplate their introduction into a domain we need real proof that they are needed to solve serious problems. It's not enough to say, "we're creating a new kind of property, hurrah!"


• We can measure innovation by counting the number of patents.

This is confusion of correlation and causality. In the software industry, the more patents a firm files, the less innovation it does.


• If you are against software patents, you are against all patents.

Just as patents are not a universal panacea, they are not a universal plague. In some domains they can work very well. The term "the anti-patent crowd" is a slander.


• If you are against software patents, you are against all intellectual property.

Yes, naturally. Except that copyrights and trademarks are still "intellectual property", last time I checked, and I've not seen anyone sane take an anti-copyright or anti-trademark stance. Even the GPL is fully based on copyright. Let's get this straight: anti-software patent means literally, "anti-software patent", or alternatively, "pro-copyright". OK, we have that clear.


• Software is an industrial material like steel or plastic.

The day I can get abundant free steel or plastic from total strangers, please tell me and order me a few thousand tonnes. Software is a cultural product, not an industrial product. Software factories work about as well as art factories.


• Software innovators need patents to get investment and to compete.

You are reading this thanks to an Internet built by people who largely had no investment, let alone software patents. Software innovation needs only cheaper communications, good open standards, and larger markets.


• Software patents are good for large software firms.

Big Software has been conned into thinking it wants software patents. They are starting to regret this. The only people who really think software patents are a good idea are NPEs (non-producing entities) and their friends. And NPEs mostly use their patents to attack the Big Software firms that lobbied for them in the first place. Nice irony, unless you own MSFT stock.


• A portfolio of software patents is a good defensive measure.

No, a portfolio of software patents is a good offensive measure. Only an NPE can attack using patents without risk of counter attack. Software patent portfolios are a waste of money for software firms, though they may look good in the hallway.


• Copyright is not sufficient protection for software innovators.

The software business has never needed protectionism, it needs lower barriers and cheaper communications. Copyright appears to have worked very well so far. The only serious problem with copyright that I'm aware of is that it does not create billable hours for IP specialists.


• Software innovators can choose between copyright and software patents.

Actual quote from the EPO. Nice theory, except that software patents undercut copyright and render it useless.


• It is the high cost of software patents that is a problem.

"It is the high cost of handguns that prevents every household from owning one and thus protecting themselves". Yes, I can see the logic in this statement. Sir, I have this bridge that is for sale, can I interest you?


• Software patents should be easier to enforce.

"Handguns should be easier to use, then we would see safer streets". The idea of cheaper offensive weapons is not very reassuring. Unless you are one of the NPEs that have a nice patent portfolio.


• The problem is low-quality patents, not software patents as such.

The only good software patent is a dead software patent. Even the most original and sophisticated software patent can throttle an entire industry if it claims a fundamental idea.


• With better peer review and prior art searches, we could guarantee good software patents.

If we can't trust the patent offices to grant only high-quality patents, how can we trust them to set-up a real peer-review system? And since software patents are mostly obfusticated, how can prior-art searches help? What happens to the art that stretches from the 1960's to 2000, and never got onto the Internet? Big Software is scared their expensive patent portfolios are getting devalued by all those junk patents, and this myth is an attempt to delay real reform of the patent system. I say, hunt down all the software patents, line them up, and shoot them.