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Patents are getting out of hand

Column Software patents are as foolish as trying to catch the wind
Thu Dec 22 2011, 15:22

WE RECENTLY RAN A POLL asking readers of The INQUIRER their views about all the recent patent litigation over mobile technology, and most of those who registered their opinions reported negative views about patents.

A lot of our readers took a dim view of Apple, which they saw as being overly aggressive, with 26 per cent saying, "Yes, Apple needs to find something better to do with its time."

Furthermore more than half, 58 per cent answered, "Yes, phones and tablets all look the same, get over it."

I think this popular dissatisfaction with the recent raft of mobile technology patents litigation reflects larger problems with the patents system, especially in the United States.

So what about patents?
Patents have their place. In the US, patents (along with copyrights) were established in the US Constitution under Article One, Section 8, which reads, "The Congress shall have power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;...."

The rationale was to provide an incentive for creative inventors to share their inventions with the nation as a whole by providing them with monopolies on those for limited times.

However, over 200 years later it seems obvious that the patents system is broken. The cost of pursuing or defending against a patent lawsuit starts at about $2m, making patents almost exclusively the playground of large corporations. This disadvantages individual inventors, to be sure, but it is not the main problem that plagues the patents system and innovation.

Actually, there seem to be at least two major problems with the patents system. The first problem is that patents are now being granted for 'inventions' that never would have been allowed 200 years ago. Such things like 'business method' and 'medical diagnosis process' patents seem quite obviously inappropriate, but there are other categories of patents that are also pernicious. The second big problem is abuse of the patents system.

One category of patents that is harmful is software patents. First, software patents should not exist. In fact, software patents are not permitted in Europe. The reason that software patents should never have been allowed is that software is mathematics.

It is just as simple as that. Software is maths. Just as you can't patent the mere fact that 1+1=2, so also it has been solidly proven that all computer software is fundamentally mathematics. No one can prove that any software exists or is even possible that is qualitatively different than mathematical logic. People have written some very convincing doctoral dissertation quality papers to show this conclusively. Unfortunately, those papers aren't legal briefs.

US courts however, including the US Supreme Court - at least, so far - seem determined to remain dazzled by fancy legal footwork and thus exhibit proof of Arthur C Clarke's dictum, "Sufficiently advanced technology is indistinguishable from magic." So the patents system in the US remains mired in superstition and keeps handing out monopolies on bits of software.

The worst problem with software patents is that they are creating an ever growing legal minefield for developing and using most software. This tends to have a chilling effect on software innovation. Software patents are also particularly susceptible to legal abuse.

This brings us to patent abuse. Based on our poll results, apparently there's a distinct perception among over a quarter of our respondents that Apple is engaging in patent abuse through its litigation campaign against its rivals in the smartphone and tablet markets.

Abuse of the patents system unnecessarily increases costs for all market participants, ultimately including consumers. I suspect that a widespread understanding of this fact is what actually drove the overwhelmingly negative response uncovered in our poll about recent patents litigation. Apple isn't the only company that is arguably guilty of abusing patents, of course, but it is a handy example.

With respect to the parts of Apple's recent patents war on its competitors that involve software patents, an article by Mark Webbink, a law professor and former general counsel at Red Hat, makes this point rather well at Groklaw.

Software patents have to go away, one way or another. If lawmakers and the courts don't do away with them, other societies that aren't encumbered by them will eventually out-compete the ones that are, and software patents will eventually become irrelevant right along with the myopic, grasping countries that are trying to grant first come, first served monopolies on little chunks of math.

Having software patents is as foolish as trying to catch the wind.

Other problematic patents
Other categories of patents that are problematic in various ways include patents on pharmaceutical drugs, the human genome and biological organisms including genetically modified plants and animals.

These three categories of patents lead to perverse incentives and, in some cases, potentially very bad outcomes in terms of both ethics and real world consequences.

Very briefly, let's touch on just a few of these problems in areas other than software.

Pharmaceutical companies and the medical professions deprecate natural drugs and medical remedies because they can't be patented to make money, thus depriving people of effective cures and palliatives that have been known and used for millennia.

Further, the ethical pitfalls of patenting human genome information and discoveries based on that knowledge should be obvious.

Finally, the ability to patent genetically modified organisms has created perverse incentives for harmful activities in pursuit of ever greater profits by large agribusiness and chemical corporations.

Fixing the broken patents system in these areas unrelated to information technology likely won't solve all of these problems, but doing that should be part of the complete solution. µ


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