Why End Software Patent?
Abstract ideas should not be patentable
In their book, “Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk,” Boston University professors, James Bessen & Michael J. Meurer, show that Murphy's Law (“If anything can go wrong, it will”) has been working overtime in the area of software. The authors dedicate an entire chapter to software and business method patents, which are particularly problematic because they account for almost 38 percent of all patent litigation.
The authors find that in the United States, software patents are twice as likely to be litigated as other patents while business method patents (which act as a proxy for software patents) are seven times as likely to be litigated. The authors say, “Our reading of the case law convinces us that patent law tolerates too many software claims untethered to any real invention or structure; in such a world clear boundaries are unattainable.” The authors point out that patent on abstract ideas are often subject to multiple interpretations and are therefore more ambiguous. An example of this ambiguity is the E-Data patent on "point of sale location." In the IT industry, this term is jargon for the cash register or location where the customer pays the cashier. When the US Federal Circuit interpreted this claim, they decided that it referred to any location where an e-commerce transaction might take place. Thus, a patent filed 17 years ago when e-commerce did not exist, ended up causing several lawsuits.
The lack of clear boundaries in software means that even law-abiding software developers who intend not to violate another's patent have no clear means of avoiding it. The authors point out that there are around 4000 patents on e-commerce and around 11,000 patents on online shopping. Add to this the fact that getting legal opinion on each software patent can cost around USD 5,000 and we have a vexatious, if not impossible, task at hand. For most software developers, doing a patent search in connection with their work is simply not economically feasible. Even leaving aside the cost of a search, the results are seldom conclusive. In other words, even law-abiding software developers will find that, if India allows software patenting, there is no way for them to eliminate the risk of a patent infringement lawsuit.
Software patents prevent independent invention
Under copyright law, if software developers write code that is similar to that of another, they can defend themselves on the grounds of independent invention because copyright protects the expression of an idea. However, the same defense is not possible under a software patent regime because a patent is a monopoly on the idea itself. Thus, even if software developers independently create a program, they may be liable for infringement of one of the more than 200,000 software patents in existence in the U.S. Even end-users who use software for routine, everyday activities may be liable for infringement. For example, McDonalds and 400 other entities were served notices for violating DataCard's patent on “Method for processing debit purchase transactions using a countertop terminal system.” In another case, a company (ironically) called Beneficial Innovations, sued the New York Times, YouTube and many other media organizations for allegedly violating its patent on “Method and system for playing games on a network.” Therefore the problem of software patents is not one that is confined to the software development industry alone and ends up increasing the cost of software for society as a whole.
Software innovation flourishes without patents
A patent is a state-granted monopoly on an invention, in return for disclosure of the idea. The original intent of the patent system was to encourage disclosure by the inventor in exchange for exclusive rights for a limited period of time to the invention. This ensured that inventors did not take their inventions to the grave and that society could build on existing knowledge rather than reinvent the wheel. The social contract between an inventor and society was that the inventor disclosed details of the invention in return for the patent. These patents are state granted monopolies that give the inventor the right to exclude others from using that invention for a limited period of time. On expiry of those patents, the invention flows into the commons and benefits society.
However, the history of the software industry shows that innovation flourished long before software patents came into force during the 1980s. Some of the fundamental inventions of the computer age—the Internet, compilers, spreadsheets, etc.—were created despite the lack of patent protection. The growth of the Free and Open Source Software (FOSS) community in recent years provides another proof point. The FOSS model of collaboration, community, and shared ownership of knowledge has led to tremendous innovation. The Linux Foundation, a leading FOSS organization that hosts 300+ FOSS projects, estimates that these projects have created 1.15 billion lines of code worth $54 billion. Similarly, the Apache Software Foundation estimates that the 350+ projects it hosts have created FOSS worth $22 billion. These projects cover the most fundamental technologies from cloud computing, distributed computing, big data and analytics, blockchain technologies, and many others. This inclusive Collaborative Innovation model of FOSS (which is the very opposite of the exclusionary private monopolies represented by software patents) is now the dominant model of software development. It is therefore clear that patent protection is not necessary for innovation in the software industry.
This post by David Wheeler on The most important software innovations has more information.