This piece is from the magazine LinuxUser:
Software patents – a protection racket?
by Richard HillesleySoftware patents are a racket for the protection of incumbent cartels and monopolies against innovation and competition, says Richard Hillesley
This article is part of the trend of more and more people seeing that something is wrong with IP. But like most conventionalist criticisms, it’s unprincipled and confused. It misses the boat. The author does not challenge the notion that patents ought to be granted for truly “original” inventions:
In theory, patents are granted only after strenuous tests of originality and appropriateness have been met, and should only be conferred on inventions that are entirely original, are not obvious, and have the potential to radically transform the way things are done. In practice, the bar has been lowered to allow a proliferation of trivial and contestable patents, especially, but not only, in the area of software and business method patents.
This implies that copying the really original innovations of other companies is somehow wrong, and that allowing lawsuits for patent infringement in these cases is legitimate. This would be “stealing.” As the author writes:
Nobody seriously believes that any of the companies or individuals accused of infringement has practised industrial sabotage or stolen the ‘property’ of anybody else. The purpose of these actions has been to make a fast buck or to inhibit competition. Ownership of software patents is not about innovation or originality.
So according to the author, the problem is not intellectual property in general, nor even patents in general. It’s just software patents, since they don’t really cover “original” and “innovative” inventions–the “bar is too low”. The problem he sees is that obtaining a software patent “requires minimal investment in staff, research, manufacture or the trading of hard goods.” As if a patent obtained from greater investment and trading in “hard goods” reduces the harm of the granting of patent monopolies.
Further, while it is true that it is harder for the patent office to competently (whatever that means) find relevant prior art for software inventions, it is not the case that all software patents are “trivial” in the patentability sense.
The way it works is that the PTO examiners usually cannot find all the prior art for any invention claimed in a patent application. The budget for the search is limited since it is paid for by a “search fee” portion of the patent filing fee, which is about $620 (or half that for “small entities”). So the Examiner can only do a fairly cursory search given this kind of budget. Contrast this with the fact that in patent litigation the defendant will often spend tens of thousands of dollars, or more, to engage in a much more thorough search to try to turn up relevant prior art that the patent examiner did not find, to try to invalidate the patent being aggressively used against the defendant. Of course, even if the defendant finds damaging prior art, the patent still carries a “presumption of validity” that has to be overcome with “clear and convincing” evidence (see my Supreme Court Keeps High Standard for Invalidating Patents). This presumption is perverse given the limited ability of the PTO to conduct a thorough search.
What this means is that any given issued patent, whether software or not, is presumed valid even though there might be prior art “out there” that, if the PTO had known about it, would have caused the patent to be rejected (or narrowed). Now, it is true that for software inventions a good deal of the relevant prior art is found in publications external to the standard PTO patent database, so it is probably the case that a greater percentage of software patents are “really” invalid than regular patents. But so what? This is just a difference in degree, not in kind.
The problem is not software patents. The problem is not “trivial” or “junk” patents. Even if you get rid of software patents (though I’ve written maybe 100 of them and am not sure you can define it rigorously to carve them out), even if every patent that issues is 100% “valid”–still, we have companies using patents to stop competitors from competing. This is the problem that software patent opponents need to see.
Yes, well, giving the inventor sole rights, or as you put it, “stopping competitors from competing”, is exactly what patents are by design intended to do. This is for good reason. Without a patent system, any small newcomer bringing a new invention into the market would quickly be swept away when the larger incumbant took the idea and applied their considerable marketing, production, and distribution channels to it. You are therefore implying that the very existance of a patent system is the problem. I respectfully disagree. That would guarantee a return to feudalism, where only the large and powerful have the right to their serf’s inventions. I believe it is indeed the “trivial” and “junk” patents that are the problem. The largest companies are using them to flood the patent system and render it useless, with the same end result as if the patent system were abolished.
Er, yes. I know.
It’s for a reason, but not a good reason.
This is not necessarily true, but if so, so what? All you are saying is the newcomer will face competition. Your “quickly” implies that it’s “too much” competition. So you guys are against free market competition. You are okay with it only if a newcomer doesn’t face a lot of competition, only if there is a moderate amount of competition. THat’s why you favor anti-competitive laws, to stop “unbridled competition.”. Exactly. That is why IP laws are anti-market and protectionists.
Bingo.
But your reasons for disagreeing are incoherent.
Actually it was during feudalism that mercantalism and protectionism had their heyday; and that is what patent laws are: just a New Mercantilism.
You are wrong. It is all patents. An innovator has no “right” to be free from competition if he reveals his innovations to the world. Of course people can learn from him, imitate, emulate, copy, compete, and improve on it.
Interesting, would you say the same thing about other forms of IP protection (copyrights, trademarks, trad secrets)? How about copyleft licences like the GPL?
I would like to offer up some counter-arguments, although I do this more in the spirit of cooperatively seeking the truth rather than to assert myself. First, at the risk of derailing the conversation, I must call into question the assumptions you bring to bear. Namely, that laissez faire capitalism would actually lead to a free competition between actors in the market place. On the contrary, it appears that those with the most capital/market share (ie. big corporations) have a tendency to draw more of that to themselves. When a corporation create the capital, they simply buy/merge with the company that does. Microsoft is a case in point of this (although most other large companies do the same). While they certainly do create things, much of their business is the buying & marketing of other companies software. If Microsoft were to in fact succeed in their goal and achieve a corner on the software industry, would that market still be free?
Given that the subtitle of this blog is “Anti-Monopoly” I infer that you and I would agree that the above example does not represent the free market. Thus we have anti-trust laws, and it is generally believed that they promote freedom. Similarly certain other government programs such as “property rights” and “contract enforcement” provide additional limits to economic activity. What these laws have in common is that they prevent corporations from gaming our economic system.
I am pressed for time so I cannot go more into detail about what I have said above except to suggest that there are reasons for restricting enterprise, and that neither the total removal of such restrictions nor a naive application of them will result in economic equilibrium. Thus, more nuanced IP laws may be in order.
Second, I would simply like to point out that our IP laws are the way the are in good part to large corporations (e.g. Disney) and that their largeness gives them much political power. I would like to suggest that if we made small business the path of least resistance that we not have 1) ridiculous IP laws, and 2)ridiculous IP litigations. Or, at least if we did the consequences would not be so wide-spread.
Correction: in the second paragraph I mean “when a corporation /cannot/ create the capital…”
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