Should Software Patents Exist?

Illustration for article titled Should Software Patents Exist?

Patents are supposed to encourage invention and protect inventors from being ripped off. At least, this was the reasoning when patents applied to things like steam engines and drillbits. But software? That might be a whole other question.

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Patents were always intended for physical things—mechanisms that did something better in a way that would have never been obvious to another inventors. A genuine leap forward. The advent of software complicated things—and Microsoft's immense commercialization of software pushed software patents forward at a blistering pace.

Things like a single-click online purchase dubiously fit that great leap criterion—and it's yielded a giant bundle of money for Amazon, which owns the patent on that button. If you try to use it without their permission, out come the lawyers.

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Most recently, the issue's been highlighted by Lodsys, which has attacked small developers with little means to defend themselves, claiming patent grievances and demanding dough. The little guy has a hard time fighting back against patent trolling, and might just discourage the next great app from being made in the first place.

Which prompts venture capitalist Fred Wilson to declare the following:

I believe that software patents should not exist. They are a tax on innovation. And software is closer to media than it is to hardware. Patenting software is like patenting music.

Do you agree with Fred? Is the idea of being able to freeze the rest of the world out of a simple software function an evil or a boon? As he notes with regards to the Lodsys/Apple imbroglio, the former "Didn't even 'invent' the idea. They purchased the patent and are now using it like a cluster bomb on the entire mobile app developer community." Is this the exception, or the rule? Should we axe software patents? [via A VC, Photo: Shutterstock/Tan Kian Khoon]

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DISCUSSION

The big discrepancy with software patents is this:

With hardware patents, you patent a specific implementation of an idea. If I have an idea for a steam engine, I patent the way that I've implemented the engine (or parts of the engine). However, you, as a smart engineer, are welcome to come up with another steam engine whose parts operate in different ways. I have no claim to "the act of using steam to move a vehicle".

With software patents it is much the opposite. Companies (mostly) hide their specific implementation from the world. Instead, the patents are on ideas, such as "Making in app purchases on a mobile device". This is not an implementation of an idea and thus shouldn't be patentable.