Mixed Signals
Any sufficiently advanced information is indistinguishable from noise
Tuesday 29 January 2008, 10:27 PM
Patent nonsense revisited
Perhaps Justice Kitchin has been talking to a friend of mine with whom, years ago, I had a knock-down argument that neither of us won.
My friend's engineering nous is exemplary, his creativity is off-planet, his logical prowess would shame a Vulcan, and his commercial instinct is so minuscule I doubt CERN could detect it with its finest machinery set to maximum magnification.
In his work for an organisation you will encounter every day, my friend built an impressive portfolio of patents in some very technical fields. (I think one particular set is about to lapse, just at the moment that the ideas behind them are about to become very important. If it were anyone else I'd find that immensely sad, but with him it's as natural as apples falling from trees.)
He was of the opinion that of course, software should be patented: he had created hardware-based inventions and software-based inventions, and couldn't see why one set was protected and the other not.
I completely understand that, from his point of view. He had created complex things that had never been seen before, doing things that nothing else did.
But pure software is so rarely like that - there are immense commonalities between techniques, because at heart everything is based on the same tiny set of mechanisms, and the problems solved boil down in a remarkable fashion to different ways of expressing the same problem and applying similar solutions.
I remember when I was involved in the initial design of an Office-like suite of software about twenty years ago, when the field was a lot newer than it is now and there was more scope for philosophical discussions of what it was that such a task actually involved (for those with extreme nerdular tendencies, there are tenuous connections between those discussions and what ended up as PipeDream on the Z88).
We decided that everything - word processor, graphics, spreadsheet - could be considered as special cases of a database which stored just two things: information contained in a small variety of data types, and interrelationships. The word processor would work with type 'character', building up into relationships called words, sentences, paragraphs and so on, with those relationships stored as their own types with relationships covering formatting, document intent, and so on. Spreadsheets would know about type 'number' interrelated by formulae and formatting, and so on and so forth. The freedom for mixing up what these days are considered very different sorts of things was startling, and had such a thing worked well we'd probably have a very different online world now.
As you might expect, philosophically satisfying schema like those soon hit some ugly realities about performance, storage and other dull old practicalities. (Whether it's worth revisiting these ideas now we have stupidly capable machines is in itself a fascinating idea). But I think it would have been possible, had software patents been in existence back then, to have written a single patent that would have knobbled enormous areas of application software for years, without any recourse to actually producing an invention that had much practical application.
My friend refused to believe that such worries had any place in real invention, because he really believed that patents existed purely to encourage innovation and would be used as such by anyone who was a real inventor.
I so wish he had been right. I was unable to convince him otherwise. But he wasn't, as the existence of patent trolls demonstrates, and until we can legislate against bad faith we'll have to content ourselves with legislating against software patents.
PreviousComments on this post
Correct me if I'm wrong - I'm not an IP lawyer - but am I right in thinking that there are 2 main differences between patent and copyright?
First: what it covers
Copyright covers the exact material you have created (text, code, images, whatever). Nobody else can pass off an exact copy of your material as theirs. Patent on the other hand covers a way of doing things - patent that way, and nobody else can do that task that way because you own that way of doing it. (Ok royalties aside).
Second: when you can obtain it
Copyright can only be obtained when you have produced your material, and happens automatically - no need to actually go through any administrative processes to obtain it. You own the material immediately you have created it. Patent on the other hand can be obtained by going through an administrative process as soon as you have had the idea, whether you have actually created your material or not.
So, then ... software. Almost all software uses the same techniques, and most of the time spent (ie the cost) for most software projects is not coming up with the original idea, but the technical aspects of working out how to implement that idea and code it into a working product, remove the bugs etc.
If you don't need that costly and time-consuming stage to obtain a patent for software, what will happen - nobody will bother with the costly time-consuming stage, since the best profit will be from patent royalties. Software development will be stifled, and customers will be unable to obtain the software they require except at exhorbitant prices.
The judge might realise this if the country's legal system required a new national computer system and the judge was told this was not possible, as XYZ Ltd owned the patent required to implement legal case management systems and refused to develop it as it was not cost-effective. See how the courts would manage then when they were unable to get an up to date software system! Hang on... maybe that would make no difference - didn't that project get scrapped?
One aspect of patent law is that patent holders are required to license their patents fairly - you can't get a patent and then refuse to let anyone use it, or charge unreasonable amounts to your enemies. (What 'unreasonable' and 'fairly' actually mean is another reason for the high level of caviar and champagne poisoning among patent lawyers).
That's not the case for copyright, where you can do any deal you like with anyone you like, including refusing to let anyone near the thing.
The reason we have intellectual property laws in the first place (they're a recent invention - you won't find them in the 10 Commandments) is to encourage innovation by giving the inventors of ideas the option of striking an enforceable deal with people who want to use the ideas. Not all IP is protected. There's none in the title of a book, for example, although other laws may apply if you're trying to represent your book as something it ain't - but that's fraud.
The question isn't whether software is a form of IP that should be protected, but what sort is most appropriate. Given the nature of software and the history of the industry, it's very hard to argue that patents are necessary to promote innovation. Enormous amounts take place without them. Copyright means you can create a complex system and protect it against rank duplication - and any other form of imitation requires considerable effort where it's in the obvious interests of the imitator to create differences to distinguish their new product. With the rate of change in the industry anyway, the mere act of producing a new, complex system gives you a huge advantage: if you really are innovating like crazy and producing interesting new products that keep doing new useful things, then your competition would have no chance to keep up anyway!
Great post Rupert! IP law fascinates me beyond any other realm of law. To toss a U.S. perspective into the ring, I must contend that any true software innovator will seek any form of protection except patents. In America getting a patent is essentially a form of bragging rights beyond all else. In its rawest form patents are a method of putting ones innovation on paper to encourage the next generation of development. Essentially in America one can take an existing patent make a few alterations in the name of bigger, stronger, faster and they can file for their own unique patent. Let’s not reinvent the wheel, let’s just make it better…
Cheers,
Eric Everson, Founder MyMobiSafe.com
