Are Software Patents Evil?

[Are Software Patents Evil?]

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March 2006

(This essay is derived from a talk at Google.)

A few weeks ago I found to my surprise that I'd been granted four patents.
This was all the more surprising
because I'd only applied for three. The patents aren't mine, of
course. They were assigned to Viaweb, and became Yahoo's when they
bought us. But the news set me thinking about the question of
software patents generally.

Patents are a hard problem. I've had to advise most of the startups
we've funded about them, and despite years of experience I'm still
not always sure I'm giving the right advice.

One thing I do feel pretty certain of is that if you're against
software patents, you're against patents in general. Gradually our
machines consist more and more of software. Things that used to
be done with levers and cams and gears are now done with loops and
trees and closures. There's nothing special about physical embodiments
of control systems that should make them patentable, and the software
equivalent not.

Unfortunately, patent law is inconsistent on this point. Patent
law in most countries says that algorithms aren't patentable. This
rule is left over from a time when "algorithm" meant something like
the Sieve of Eratosthenes. In 1800, people could not see as readily
as we can that a great many patents on mechanical objects were
really patents on the algorithms they embodied.

Patent lawyers still have to pretend that's what they're doing when
they patent algorithms. You must not use the word "algorithm" in
the title of a patent application, just as you must not use the
word "essays" in the title of a book. If you want to patent an
algorithm, you have to frame it as a computer system executing that algorithm.
Then it's mechanical; phew. The default euphemism for algorithm
is "system and method." Try a patent search for that phrase and
see how many results you get.

Since software patents are no different from hardware patents,
people who say "software patents are evil" are saying simply "patents
are evil." So why do so many people complain about software patents
specifically?

I think the problem is more with the patent office than the concept
of software patents. Whenever software meets government, bad things
happen, because software changes fast and government changes slow.
The patent office has been overwhelmed by both the volume and the
novelty of applications for software patents, and as a result they've
made a lot of mistakes.

The most common is to grant patents that shouldn't be granted. To
be patentable, an invention has to be more than new. It also has
to be non-obvious. And this, especially, is where the USPTO has
been dropping the ball. Slashdot has an icon that expresses the
problem vividly: a knife and fork with the words "patent pending"
superimposed.

The scary thing is, this is the only icon they have for
patent stories. Slashdot readers now take it for granted that a
story about a patent will be about a bogus patent.
That's how bad the problem has become.

The problem with Amazon's notorious one-click patent, for example,
is not that it's a software patent, but that it's obvious. Any
online store that kept people's shipping addresses would have
implemented this. The reason Amazon did it first was not that they
were especially smart, but because they were one of the earliest
could buy something.
[1]

We, as hackers, know the USPTO is letting people patent the knives
and forks of our world. The problem is, the USPTO are not hackers.
They're probably good at judging new inventions for casting steel
or grinding lenses, but they don't understand software yet.

At this point an optimist would be tempted to add "but they will
eventually." Unfortunately that might not be true. The problem
with software patents is an instance of a more general one: the
patent office takes a while to understand new technology. If so,
this problem will only get worse, because the rate of technological
change seems to be increasing. In thirty years, the patent office
may understand the sort of things we now patent as software, but
there will be other new types of inventions they understand even
less.

Applying for a patent is a negotiation. You generally apply for a
broader patent than you think you'll be granted, and the examiners
reply by throwing out some of your claims and granting others. So
I don't really blame Amazon for applying for the one-click patent.
The big mistake was the patent office's, for not insisting on
something narrower, with real technical content. By granting such
an over-broad patent, the USPTO in effect slept with Amazon on the
first date. Was Amazon supposed to say no?

Where Amazon went over to the dark side was not in applying for the
patent, but in enforcing it. A lot of companies (Microsoft, for
example) have been granted large numbers of preposterously over-broad
patents, but they keep them mainly for defensive purposes. Like
nuclear weapons, the main role of big companies' patent portfolios
is to threaten anyone who attacks them with a counter-suit. Amazon's
suit against Barnes & Noble was thus the equivalent of a nuclear
first strike.

That suit probably hurt Amazon more than it helped them. Barnes &
Noble was a lame site; Amazon would have crushed them anyway. To
attack a rival they could have ignored, Amazon put a lasting black
mark on their own reputation. Even now I think if you asked hackers
to free-associate about Amazon, the one-click patent would turn up
in the first ten topics.

Google clearly doesn't feel that merely holding patents is evil.
They've applied for a lot of them. Are they hypocrites? Are patents
evil?

There are really two variants of that question, and people answering
it often aren't clear in their own minds which they're answering.
There's a narrow variant: is it bad, given the current legal system,
to apply for patents? and also a broader one: is it bad that the
current legal system allows patents?

These are separate questions. For example, in preindustrial societies
like medieval Europe, when someone attacked you, you didn't call
the police. There were no police. When attacked, you were supposed
to fight back, and there were conventions about how to do it. Was
this wrong? That's two questions: was it wrong to take justice
into your own hands, and was it wrong that you had to? We tend to
say yes to the second, but no to the first. If no one else will
defend you, you have to defend yourself.
[2]

The situation with patents is similar. Business is a kind of
ritualized warfare. Indeed, it evolved from actual warfare: most
early traders switched on the fly from merchants to pirates depending
on how strong you seemed. In business there are certain rules
describing how companies may and may not compete with one another,
and someone deciding that they're going to play by their own rules
is missing the point. Saying "I'm not going to apply for patents
just because everyone else does" is not like saying "I'm not going
to lie just because everyone else does." It's more like saying
"I'm not going to use TCP/IP just because everyone else does." Oh
yes you are.

A closer comparison might be someone seeing a hockey game for the
first time, realizing with shock that the players were deliberately
bumping into one another, and deciding that one would on no account
be so rude when playing hockey oneself.

Hockey allows checking. It's part of the game. If your team refuses
to do it, you simply lose. So it is in business. Under the present
rules, patents are part of the game.

[...]

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