Software patent myopia
Some researchers have argued recently that worries about software patents are overblown. For example, Martin Campbell-Kelly asserts his thesis that “The anxieties expressed in the early 1990s about the effect patents would have on the software industry have not been realized.” What were these “anxieties”? Campbell-Kelly tells us, “Opponents of software patents argue that patent ‘thickets’ will necessarily impede the flow of new software products.”
Similarly, Rob Merges states boldly that “the predictions of the software patent doubters in the early 1990s have been effectively refuted so far.” He, too, tells us that the patent doubters were concerned about the effect of patent thickets on entry into the software industry. So, too, do Ronald Mann and Michael Noel and Mark Schankerman.
Beating a straw man?
I wonder whether these proponents of software patents are looking for evidence where they are unlikely to find it, at least not today. They seem to look for a surprisingly limited range of effects among a very limited range of software innovators. Then, failing to find evidence of these effects, declare that the critics of software patents are refuted.
First, concerns about software patents have involved much more than worry about software industry entry and these concerns have been held more broadly and much longer than these authors seem to suggest. Major computer companies opposed patents on software in their input to a report by a presidential commission in 1966 and in amici briefs to the Supreme Court in Gottschalk v. Benson in 1972. Major software firms opposed software patents through the mid-1990s (for example in USPTO hearings in 1994). Surveys of software developers in 1992 and 1996 reported that most were opposed to patents (Oz 1998).
Moreover, this opposition has been concerned about more than just patent thickets, including concerns about the lack of prior art, the difficulty of defining the boundaries of software patents, the fear of excessive litigation and other costs of patents. Yet these researchers ignore these issues despite growing evidence of problems in these areas (see the chapter on software patents in my forthcoming book, Patent Failure, with Mike Meurer).
Second, firms outside the software publishing industry obtain most software patents—95% of them (see Bessen and Hunt 2004). Computer and electronics firms acquire the largest shares and these industries are known to have substantial patent thickets. Clearly, researchers cannot draw representative conclusions by examining only a small group of patentees who happen to be in the software publishing industry.
Conversely, software firms acquire relatively few patents at all. Only 20% of venture-backed software startups apply for patents within four years of receiving financing [Mann 2005]. Through the 1990s, the majority of public software firms still did not have patents. Today, although many have begun acquiring patents, many large firms, such as Google, still have very few patents. Clearly, one is going to have a hard time finding adverse affects of software patent ownership among a group of firms who have very few of them.
This may be changing, of course. However, that means that adverse effects of software patents within the software industry, including from patent thickets, may arise in the future, if and when there is a patent thicket in this industry. But a search for effects of a patent thicket in this small group of patentees today is sure to find a misleading null result.
Whatever one thinks of software patents a priori, surely we can do better than to take a myopic view of the potential problems of software patents and of where they are likely to be found. This research seems a lot like arguing that cigarette smoking isn’t bad because it doesn’t cause cirrhosis of the liver or because it helps fight obesity.
Campbell-Kelly, Martin. 2005. “Not All Bad: An Historical Perspective on Software Patents.” Michigan Telecommunications and Technology Law Review, 11(2): 191-248.
Mann, Ronald J. 2005. “Do Patents Facilitate Financing in the Software Industry?” Texas Law Review, 83(4): 961-1030.
Merges, Robert P. 2006. “Patents, Entry and Growth in the Software Industry.” working paper.
Oz, Effy. 1998. “Acceptable protection of software intellectual property: a survey of software developers and lawyers.” Information & Management, 34(3): 161-173.
Philippe Aigrain said,
December 19, 2007 @ 2:39 am
I believe the arguments that you critically consider have myopia in 2 other manners :
- The first one is the assumption that software patent thickets would block innovation itself. Software innovation arise from individuals and small groups, be them sometimes working for large companies. They generally work in complete ignorance of software patents. Even more, many of the software patents actually regard innovation … that was conducted much before they were filed. It is clear that these software patents are unlikely to block innovation that already proceeded. However things are very different at later stages of innovation dissemination. The example of standards shows in my opinion that patent thickets do exist, in particular in telecommunication and media related standards, and that they do block, slow down or raise the cost the dissemination of innovation. Examples : domain name internationalization (blockage, also explained by reasons that are not related to patents), JPEG 2000 (temporary blockage), MPEG-4 (raising the cost).
- The second myopia is that any adverse effect of patents is likely to fully materialize only when patents are generalized to all geographical regions of the world where innovation is conducted. Pharmaceutical patents generated an innovation or access to innovation crisis only from the 1970s when they were generalized to all developed countries. For software patents, as Europe is in a mixed situation (software patents are not legally recognized but are granted by the European Patent Office, with almost no litigation proceeding) and India has rejected software patents, a wide relatively patent-free space exists, that limits the effects of patents including in the US (except for local litigation and its costs).
Fred said,
March 1, 2008 @ 4:03 pm
“For software patents, as Europe is in a mixed situation (software patents are not legally recognized but are granted by the European Patent Office, with almost no litigation proceeding)”
That is actually almost the same situation as the U.S. The difference is that there is at least one court case showing that U.S. judges can be mistaken about the patent-worthiness of software, business process, or mathematical equations. It just takes a single judgement to leave that question open, and then the patent lawyer sharks will go for all the money they can squeeze out of the broken system. That’s exactly what has already happened in the U.S., and all your statement shows is that the EU is just a time-bomb that hasn’t gone off yet.
“and India has rejected software patents, a wide relatively patent-free space exists, that limits the effects of patents including in the US”
Ooh, I expect to make so much money selling my software only in India now. Don’t get me wrong, I think India is showing what the world’s largest Democracy should look like. Get real, do you really think a U.S. patent holder cares at all, about whether they can exploit money from companies that ONLY do business in India? U.S. software patent policy stifles innovation in ANY company that does ANY business in the U.S.
“(except for local litigation and its costs)”
Does this really deserve just a parenthetical? Those “costs” are estimated at $11.4 billion annually! That does not even include the basic external costs of litigation, like engineer time lost to a witness stand. Estimated total costs are $30.4 billion annually, according to a recent study by the ESP project. You managed to encapsulate the white elephant of software patents into a single parenthetical. Bravo!
http://biz.yahoo.com/prnews/080228/aqth077.html?.v=35
http://endsoftpatents.org/home-page
That makes software patent litigation in the U.S. its own multi-billion dollar industry — an industry that constantly litigates over innovation, and never CREATES novel innovation.
And guess who directly benefits from all this expenditure on patent litigation? The same lawyers that end up inside the part of the judicial system that rules on patent law. That’s what I would call a self-perpetuating system.
All that money could instead be invested on real software innovation, rather than going through the onerous and expensive process of overturning obvious and prior-art infested patents.
Here’s some news for you: just because writing can be PROCESSED by a machine, that doesn’t make the writing itself a machine. The machine is what makes the processing possible, not the written language that it interprets. Have you ever gotten a piece of paper to interpret Lisp, and complete calculations for you? If you have, I feel I must tell you, you are both mistaken and a mathematical genius — it was your brain doing the processing, not the piece of paper. Are you going to patent your brain? I wish you luck on patenting your Spanish-English dictionary.
Writing, in all forms, comes under either Copyright or Trade Secret protection (and those forms of protection are mutually exclusive). In limited forms, writing and art can also come under Trademark protection. Giving any form of writing, sensory art, business process, or mathematical formulas patent protection is just plainly ridiculous. Any such claim should be laughed out of the PTO, or at least out of court. The fact that it hasn’t, to date, just means that both the PTO and court are either biased, or just negligent.