Software patents are much in the news these days, and while there’s a lot of heated verbiage on the subject, there’s not much argument from first principles. So I tried some, and, to my surprise, ended up concluding that there may be real affinity between patents and Open-Source software.

Laundries and Secrets · Let’s suppose it’s a couple of centuries ago and you’re a bright young thing with a bright idea; you’ve invented a better way to churn butter or print books or wash clothes. So, how are you going to go about making money? Well, you can use your good idea in your own dairy or print-shop or laundry, which is better than nothing. But if you want to make real money by selling churns or presses or washing machines to the whole world, you’ve got a problem, because any other smart engineer out there can tear apart your product and figure out your secret sauce. In particular, a company that’s in that business and is really big is going to murder you, because they can build your invention cheaper than you, and they’ll have more people out there selling it.

In this kind of situation, the patent system makes all kinds of sense. After you’ve got your invention shaken down, you publish the details and the law says that anyone can build one if they cut a royalty deal with you. Not only do you make more money, but the whole world has enjoys the use of better dairies and print-shops and laundries. In particular because other smart people, while they’re implementing your idea, will almost certainly improve on it.

Software and Secrets · Let’s fast-forward to today. Suppose you’re a keen young programmer and you’ve figured out a keen new algorithm for securing a communications channel or crash-proofing a database or animating an MMPORG monster. Your situation is quite a bit different from the inventor of centuries back. That’s because secrecy is a much more attractive strategy.

You can compile your secret sauce into an opaque binary and sell it to the world without giving it away to your bigger and richer competitor. Alternatively, these days you can offer your product as a service over the Net, so that your technology never goes outside your own firewall. I’ve personally done both those things in the course of my career.

This is fine for the inventor, but isn’t a win for society as a whole. Free-market capitalism thrives on competition and transparency, not secrets and monopolies.

Software Patents · Well, why not, in principle? They’d incent the inventor to share the goodies and the whole world would end up improved: secure communications, reliable databases and scary MMPORGs. In fact, in an ideal world, I’d rewrite the law to allow software patents but require a working Open-Source implementation as a condition of getting one. Because both software documentation and patent applications are notoriously inaccurate, incomplete, and unreadable. Open Source tells the truth, the whole truth, and nothing but the truth.

Where We Are Now · Does this mean that I’ve concluded that software patents are just fine, thank you, and the current rat’s-nest of litigation is good business practice?

No; while I generally agree with Jonathan that the software-patent idea is not inherently broken (and thus disagree with Richard Stallman), the fact is that it’s almost impossible for rational people to have a rational discussion about software patents. The reason is the insanely-dysfunctional behavior of the US Patent and Trademark Office, whose idiotic willingness to grant patents on anything without regard for prior art or the obviousness test has totally poisoned the waters of this discussion. The result, as I’ve argued before, is that the net effect of the software-patent system is to serve as a parasitic tax by lawyers on businesspeople [And yes, I acknowledge that some of my ideas have changed since I wrote that piece].

Where I disagree with Jonathan is on what’s known as “business-method” patents: one-click ordering, per-employee pricing. I’m having trouble seeing the benefit to society in granting patents on something that could never possibly be done secretly. I also think that to get a patent, an invention should include innovation both in conception and implementation.

But hey, the US case law is on Jonathan’s side; these things are now fair game, they’re legal, and if you’re in business you use the tools the law gives you.

Since you can generally only fix one problem at a time, let’s start where it’s most badly broken, at the US Patent and Trademark Office. And please, let’s get together and convince the European Union not to go down the same damaging, failed path.

author · Dad
colophon · rights
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October 12, 2004
· Business (126 fragments)
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