As a programmer doing reasonably smart stuff on the web, I’m made a bit uneasy by software patents, namely because the possibility exists that I be sued for infringing upon them.
It’s not that I do anything nasty like meticulously reverse engineering the complex works of another for my own benefit, it’s that I build websites and web applications at all. I haven’t done the boatloads of research to know precisely how much I’m infringing, but, for example, most projects I do contain some sort of menu, and this technically violates Microsoft’s patent on ‘system and method for providing and displaying a Web page having an embedded menu’, which they have already demonstrated willingness to sue another company for. I do stuff that’s WAY more complicated than a bunch of navigation links of at the top of the screen, so I can only imagine how many other toes I’m stepping on when building systems that feature both ubiquitous and niche features.
So this characterizes the implication of patent law upon me personally. Now then, if you scale that up to a community of hundreds of thousands of programmers similarly impacted, and throw in the rising prominence of large companies suing one another over intellectual property, you will then have a sense of what the fuss over software patents covers. These are broad strokes, but they convey the gist.
Accordingly, protest has risen and lengthy debates have raged on about how to fix the “software patent problem”. Some of it goes on and on about legal precedent, objective tests for what’s patentable, the so-called “transformation test”, and other things that apt to make the eyes of a more casual reader glaze over (mine included).
What I want to explore is if it makes sense and is defensible to take a completely different tack: the pragmatic view of the average, motivated nerd.
Let us eschew, for a while, all the legal mumbo jumbo of definitions, specificity, precedent and so forth as they are usually applied to the debate of “is X patentable?”, and see if we can’t go closer to the root concepts in an effort to sidestep the whole tangled mess. I want to look through the lens of the reasons and motivations of why have a patent system at all.
The Essence of the Patent System
I’m not saying anything new or profound here, just summarizing to set the stage. The patent system is a societal construct: we all, as a society, agree to abide by certain constraints (namely not infringe upon anothers patented ideas for a fixed period of time), we willingly do this in order to reap benefits as a society, and there are consequences for an individual who breaks this agreement. (The whole thing is not unlike how we all, as a society, agree not to kill one another: we all more or less enjoy the overall benefit and are willing to give up that particular freedom, and there are consequences for an individual who breaks that agreement).
There are two really great benefits we reap as a society for having and honoring the patent system.
The first is that it encourages people to come up with new great things. The protection offered by patents effectively says “Hey, nice job coming up with that great new thing! Listen, we know you put a lot of hard work and investment into doing so, and for being the one who did all that we’ll give you a window of time in which you can be the only one who gets to reap the reward of that effort, without having some copy cat come along and bootstrap off of your blood and sweat.” An innovator, knowing that benefit lies on the other side is encouraged to invest time/effort/money up front. The rest of society gets to enjoy the fruits of that work, and for it pays the price of allowing a temporary monopoly.
The second benefit is that it encourages disclosure of really smart work. In this sense, the patent system effectively says “Wow, that’s something really smart that you did! Listen, we’re thinking long term for the expansion of the fabric of human knowledge, and so we’d love to know how you did that rather than see you take those secrets to the grave, or have your heirs forever keep it under lock and key. If you teach us how that works, we’ll get to expand as a civilization and in return we’ll make sure you have a window of time in which to benefit from your novel creation. Thanks for bettering the rest of us for the long haul.” Again, a nice benefit to society: it speeds up the proliferation of ingenuity and all the fruits that come with it, gained at the cost of allowing a temporary monopoly.
Evaluating Patents as a Cost/Benefit Proposition
From a clear understanding of the trade-off made when a patent is given, one can view it as a transaction willingly entered into by two parties. A patent application can be viewed as a business proposal that a society might freely choose to enter into (or politely decline) according to its interests and values, much like any business deal between two free-willed entities.
I propose that the debate no longer center around IF a given idea is patentable, but instead whether or not we WANT to grant a patent for a given idea: in other words, transform the debate to a value judgment as to whether we as a society care to pay the price of issuing a patent for the expected benefit, or would rather pass on the opportunity altogether. When it comes to software, I believe the best choice, as a culture, is to say “thanks but no thanks” to the opportunity of issuing patents, and it takes a look into the nature of software and the nerd culture that surrounds it to see clearly why.
Nerd Culture and Innovation
I love creating cool and interesting stuff with technology, and there are 100,000 others like me. There is no shortage of things out there in software that could be (or are) patented that a smart nerd with a little bit of gumption could look at and recreate without trouble. And by “look at” I mean simply get the view as an end user, not trolling through source code or employing sophisticated tools of reverse engineering.
Consider, for example, Amazon’s patent on one click ordering. When a customer is logged in, and has items in their cart, with one click they can place a completed order for those items. Kinda nifty, but anyone who’s done e-commerce programming can immediately work out how to implement such a feature using a customer’s information on file. I say society got a raw deal for issuing this patent: Amazon shared nothing of value with the rest of the world, and effectively earned the right squat on a generally useful idea because they ponied up some cash for lawyers and got some paperwork in first.
I would categorize ideas like that as “inevitable disclosure”: an idea that, by its very existence in user-facing software, reveals everything needed to reproduce it. The benefit of having information about how a such an idea was implemented in software disclosed is moot: one look and (or even sometimes hearing of the idea) is all a smart nerd needs to work out the rest. Apple’s patented “slide to unlock” widget is another example of an inevitable disclosure idea. So are rollover images:
We smart nerds are always thinking of and building new stuff to razzle-dazzle, be it for the pure fun of it, personal pride and reputation, or a great portfolio piece by which to impress the next prospective client for a contracting gig. And nerd culture, with its drive to innovate and share runs much deeper than small projects. Volunteer, collaborative open source projects have created top notch, large scale innovation in all realms of software, such as full-fledged operating systems, open web standards, content management platforms, e-commerce packages, audio and video compression schemes, office productivity suites, and more.
I point this all out to demonstrate a simple observation: innovation [in software] isn’t going to dry up if the incentive of patent protections were to disappear tomorrow. More than most (all?) industries, software grants much more space for hobbyists and enthusiasts to get involved. The overhead to major achievement is much smaller. We are numerous, we are smart, and we are hungry to create brilliant things for both personal and altruistic reasons.
Secrets in Software
The world of software won’t turn into the wild west of pillaging and stealing ideas in the absence of software patents, because things that are genuinely hard to do and which represent painstaking work and novel innovation can be kept a secret.
Come to think of it, the desire to file a patent to protect a software innovation may be a sign of admittance on the part of the applicant that the idea itself will be easy to replicate by a community of smart people (or even maybe your average nerd), which is a sure good reason to be disinterested in issuing a patent at all. “Thanks but no thanks”, I would rather we collectively say as a society: “keep it to yourself because the larger world will figure out how to execute and enjoy this idea sooner or later, and get there sooner without paying the price.”
 Which breaks my heart, because as a casual observer it appears as though legal strong-arming is becoming a passable substitute for actual marketplace competitiveness.
 Google’s proprietary index and ranking algorithms that power their web search are presumably breathtakingly brilliant. They constitute a large portion of the secret sauce which gives Google its competitive edge, and they reap the rewards of that not because they came first and get to squat on medium-obvious ideas, but because they do it better than your average smart person can figure out on their own. Contrast this against Apple’s slider thingee.