The Software Patent: Do We Need, Want or Even Like it?
During PhilOSC 2006 yesterday, we had this discussion about a very very very controversial topic: software patents. Patents, in general, are a form of intellectual property (IP) protection that is provided to a patent holder for a limited amount of time. This protection allows the holder of the patent to exclusively benefit from the said invention. Patents are generally considered pro-inventor. The idea of a patentable invention is something unique, tangible and implementable. In the case of business practices and software patents, the uniqueness and tangibility part goes out the door. This is the primary reason why software patents are not recognized in all IP regimes in the world. Some countries like the United States, allow the filling of patents on software and business practices. It is interesting to note that filling of software patents was not the original intent of the US patent law as it also has the requisite clause that exempts, “processes, machines, articles of manufacture, and compositions of matter” from being patented (Software = Processes, Code is already protected by copyright). However, some jurisprudence during the 80’s opened the floodgates. It is In other countries like the Philippines, India and most of the European Union, software patents are generally not allowed.
So how come in our discussion yesterday, the idea of software patent is repulsive to some but required for others? Here are some of the key points.
- Software Patents are pro-innovation. This is totally true. The intent of patent protection is to give inventors (big or small) the ability to exclusively benefit from their invention for a given period of time. However, this is not always the case most of the time. Large companies with the financial and legal muscle can file numerous patents on many different topics and fields. Mr. Small Inventor will be hard pressed to create an invention that does not infringe on an existing patent controlled by one of these big corporations. The other kind of creature is the patent troll. These are companies or individuals that file patents with no intent to purse development of these ideas. Their only goal is to use these patents to sue other companies in the future. This is precisely what happened in the NTP versus RIM case. Even if the case was ruled in favor of RIM, there has been irrevocable damage done to RIM as result of this costly legislation. So why should he bother innovate? Heck, some of these little inventors might want to become patent trolls in the desire to get rich quick.
- The most innovative market in the world allows software patents. This refers to the United States. However, what we should consider is that which came first? Software innovation due to patents or market size? Can we also consider that the US is the most innovative market because it is the largest market for software? Definitely. Software development companies from other countries in the world file for patent protection in the US even if their own countries do not recognize it. This is because of their desire to compete in the largest software market in the world that has software patents. In the Philippines, we do not even want to consume locally developed software. We have such a strong “colonial mentality” that we would rather buy software from a foreign big brands unknowingly with pieces actually developed by Filipinos. So instead of just paying the Filipino software developers, we have to let the big brands make money too. So with or without software patents, this won’t change. It would also be interesting to note that some of today’s most innovative software developing nations, namely Israel and India, do not allow software patents. But these countries have thriving software development industries. One major factor here is that a lot of their software grew because of internal consumption.
- Inventors need more protection. Some people say that current IP protection is not enough. However, it is interesting to note that software can already be protected with copyright or as a trade secret. These two (2) methods for IP protection are already available. The open source community makes extensive use of copyright (or copyleft) to ensure that open source software rights are protected. Another important aspect is that software can be distributed in binary form which hides the internal workings of the software. This fact, in turn, can be used to protect the software from reverse engineering. This is called trade secret protection.
- Software Patents are Anti-Open Source. Not all open source software have sponsor company that can file software patents for inventions gleaned from open source. However, this does not make software patents anti-open source per se. This is because when the open source software is released into the public domain it become prior art. Therefore, not patent should be issued for it. The only reason why software patents seem to be anti-open source today is primarily because a lot of patents pass without the patent office doing a through study of prior art. The problem here is that once a patent is issued (or pending issue) it is already given un-deserved protection.
The software patent, in itself, is not a bad thing. Patents were intended to promote innovation anyway, particularly for the small inventor. Which is good. However, because of the inherent problems of the current patent system for software, particularly in the United States, the system benefits mainly two (2) kinds of companies: the Big Corporations who can hire lots of lawyers to file/hoard patents and the Patent Troll. The first one has a lot of financial muscle the small inventor cannot compete against. The other are companies that just hire lawyers with no intention to develop or productize their inventions. They just sit on them waiting for an opportunity to litigate. This translates to sunk innovation. So instead of promoting innovation, innovation is probably stiffled because of fear and uncertainty. However, if the software patent system were implemented properly… if there were proper guidelines for assessing obvious patents and prior art… if a proper system for evaluation of patent requests with peer review were implemented… if appropriate restrictions and guidelines are placed for pre-assignment protection… if an expedient way for reversing patents are available… then maybe it might work. However, this is one of the those laws that we would rather not have than have if it is broken.
PS. A positive development for the Open Source world is that large companies like IBM, RedHat, Novell and even Microsoft are adopting an open patent policy. Some of them have gone to the extend of promising not to litigate against open source software.
