Patents for software are absurd. Software patents were opposed by the League for Programming Freedom, which published several articles in 1991 opposing them. The situation has not improved, in fact, the situation has deteriorated in the eight years since the beginning of the project. In the League for Programming Freedom’s articles, one of the issues we have is that they employ the classic debating strategy of attacking software patents from multiple angles.
This is problematic because even if one of the attacks “fails,” the other attacks remain effective. Although the central argument is present but not the focus of those articles, we believe that this multi-pronged attack detracts from its effectiveness. As a result, WE will lay it all out here—although the LPF’s papers have already drawn attention to much of this. Patents on software are a bad idea. In reality, software patents should not be allowed because they infringe on the rights of others to free expression. A patent holder has the ability to charge arbitrary amounts of money for a patent license, or simply withhold the license entirely, preventing a company from using a particular technology in the first place. Of course, this is precisely what patents are intended to accomplish. Important to remember is that patents are not granted to inventors because there is a fundamental right to ownership of new ideas that must be protected under the law.
Government grants are given out because the government believes that doing so provides an incentive to invent and that doing so is a net improvement for the general public’s good. The software programming community appears to be overwhelmingly opposed to patents. Do you believe software patents are in the public interest when they are defended solely by patent holders who earn money from licensing, patent attorneys who earn money from patent applications and litigation, or the Patent and Trademark Office (which earns money from granting patents)? Is there any reason to believe they are in the public interest when the only people defending software patents are patent holders who earn money from licensing, and a patent attorney who makes money from applying for and litigating patents? One Hack at a Time, We’re Trying to Fix Software Patents Patents on software are invalid, and patent trolls are putting a serious dent in the advancement of science and technology.
Companies are spending more money on purchasing patents in order to launch offensive strikes against their competitors, rather than competing by developing excellent products. There is a slew of patent horror stories that we could share with you, in which patents are being used for everything except to invent new things. It is true that the software patent system, as it currently exists, has absolutely nothing to do with innovation. Here’s the down-and-out side of life in Silicon Valley. While the majority of people are complaining about how software patent trolls are stifling innovation, others are attempting to come up with innovative solutions to the problems. This is why it was a breath of fresh air to see Twitter announce their patent policy, the Innovator’s Patent Agreement, also known as the IPA.
According to the Intellectual Property Act, patents can only be used in offensive litigation if the employees were granted the consent of the patent to their use in the litigation. We do not have the legal expertise to comment on how well the IPA itself might fare in patent litigation, but we are encouraged to see companies such as Twitter taking the initiative to challenge the status quo by doing something different about the problem. If you’re an employee, you want three things: to be able to innovate, to be recognized for your innovation, and to avoid having your patents used as a weapon against you. In addition, the IPA is likely to serve as a recruiting magnet for top-tier talent. A large number of other businesses are likely to follow suit. In addition, we are aware of a couple of venture capital firms that are aggressively pressuring their portfolio companies to adopt IPA. The other major issue with software patents is the issuance of bogus patents based on patentable ideas that are obvious. Article One Partners’ approach to dealing with patent trolls is one that we find particularly admirable. Article One Partners crowdsources the task of digging through prior art in order to identify bogus patents and then forces the United States Patent and Trademark Office to invalidate those patents. Apparently, prior art can be discovered without the need for a legal background. Many amateurs who enjoy researching this type of material have jumped on board with this initiative and have been successful in uncovering prior art for a large number of bogus patents. It is extremely difficult to change the system, but it is not impossible to find innovative solutions to specific problems within the system. We would recommend going above and beyond the concept of crowdsourcing the task of locating prior art. We should develop open-source tools for collecting and cataloging searchable prior art. Any time you have an idea, you can simply enter it into that database, and it will be recognized as prior art.
As a result, it would be extremely difficult for any company to patent an obvious idea because it would already have been published as prior art. Instead of searching for prior art in a reactive manner, we should create it. Open source has taught us a great deal, and it has a thriving community to support it. We can’t imagine where our industry would be today if it weren’t for open source. How come we can’t do the same thing with patents? Patents should be made available under a Creative Commons license. The industry should also develop tools to reverse translate patents, which would remove all of the legalese from them, in order to increase transparency and demonstrate for what purposes patents are being granted. We would also like to see a movement similar to open source where a ridiculously large number of patents are grouped together – a Git Hub of patents if you will. In addition, that group will go after anyone who attempts to stifle innovation by launching an offensive strike against them. If you can’t beat a troll, you should consider becoming one.
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