Software Patents: Innovation Disincentive

There’s an idea in report­ing that to be “fair” to a top­ic, one must “bal­ance” one view with equal time and empha­sis for the oppos­ing view.  You will not see that here, dear read­er, as I have said that unbi­ased jour­nal­ism does­n’t exist.  Indeed, when the oppos­ing view is intel­lec­tu­al­ly bank­rupt, giv­ing it equal empha­sis serves only to dis­tort the issue.

Con­sid­er soft­ware patents as an exam­ple.  There real­ly are no hon­est argu­ments in favor.  Like­ly copy­rights, patents rep­re­sent a set of exclu­sive rights giv­en to the “inven­tor” of an idea for a lim­it­ed time.  This is done express­ly to encour­age said inven­tor to invent.  We’re going to leave the notion of patents in gen­er­al for anoth­er time.  They dis­tort many indus­tries (such as biotech where they serve to direct research into solv­ing prob­lems with patentable chem­i­cals or patentable hybridiza­tion rather than sim­pler more cost effec­tive solu­tions), but here we’ll con­cen­trate on one indus­try we know well and one patent troll that has made the news over Christ­mas.

The news sto­ry con­cerns Walk­er Dig­i­tal suing Bliz­zard (mak­ers of “World of War­craft”) and Zygna (mak­ers of “Call of Duty: Mod­ern War­fare”) for vio­lat­ing it’s patent on pret­ty much any­thing that’s an online game that could be described as some sort of tour­na­ment-style play.  Walk­er Dig­i­tal is an exam­ple of a Patent Troll.  They don’t make or dis­cov­er any­thing; they sim­ply buy patents and enforce them using the courts.

Now that job of the patent troll may sound legit­i­mate at first.  One might not have the resources to enforce one’s patents and such an enti­ty would be an excel­lent way to mon­e­tize them.  How­ev­er, the rea­son Patent Trolls exist is that for much of the past 50 years, com­pa­nies found them­selves in patent stale­mates.  It’s lit­er­al­ly impos­si­ble to cre­ate soft­ware with­out infring­ing on patents, so large firms sim­ply trad­ed access to each oth­er’s patents.  Think about this for a moment, then: It’s impos­si­ble to be a com­pa­ny that pro­duces any­thing use­ful and to enforce patents — chances are that you’ll end up just mak­ing a deal because you also infringe on patents.  This, then, required the cre­at­ing of com­pa­nies who con­tribute noth­ing to mon­e­tize the patents.

Again, you might try to argue that Patent Trolls per­form a use­ful ser­vice.  Let’s exam­ine this one case to deter­mine if they are pro­vid­ing a use­ful ser­vice.  Our first ques­tion should be: was the inven­tor being inven­tive?  The patent was filed in 2002.  Were there online tour­na­ments before 2002?  I can per­son­al­ly remem­ber games of xpi­lot being played around the office lan in 1995.  I can also remem­ber games of Quake III being played on a dif­fer­ent office lan in 1999.  I can even remem­ber play­ing chess and go over the inter­net in uni­ver­si­ty in 1991.  While I don’t have a per­son­al rec­ol­lec­tion dat­ing back fur­ther, I’m pret­ty sure that net­works of com­put­ers have been used to play games tour­na­ments pret­ty much since there have been net­works of com­put­ers.

This makes my first point: that much of what we do on com­put­ers is not so much a new inven­tion, but a recom­bi­na­tion of many parts not wor­thy of being called an inven­tion.  One of the most famous com­put­er soft­ware patents, the blink­ing cur­sor patent, was award­ed in 1970.  It makes this point ever more clear.  First­ly, if called to make a blink­ing cur­sor, any soft­ware engi­neer would write rough­ly the same code.  This means that the soft­ware is not an inno­va­tion or inven­tion, it’s sim­ply best prac­tice.  Sec­ond­ly, through the math that makes com­put­er pro­gram­ming what it is, you could show that any pro­gram that blinks a cur­sor is equiv­a­lent to any oth­er pro­gram that blinks the cur­sor. This means that there is essen­tial­ly only one way to blink the cur­sor.

That last rev­e­la­tion means that once one per­son patents a blink­ing cur­sor, nobody else (for the life of the patent) can make a blink­ing cur­sor with­out pay­ing the first guy mon­ey.

Let’s return to our exam­ple.  Walk­er Dig­i­tal did­n’t inno­vate, then.  There is pri­or art and there is ample evi­dence that the solu­tion is sim­ply best prac­tice pro­gram­ming.  It’s a shame the US Patent Office does­n’t have the resources to enforce it’s own rules and guide­lines, but that’s where we are.  But these are two mas­sive com­pa­nies they are suing and they have the means to defend them­selves, right?  That would be true and fair if the patent sys­tem weren’t one sided enough that patent hold­ers basi­cal­ly “can’t loose” by suing.  By that I mean that even if the defen­dants win, the only cost to the patent troll is their legal fees — the defen­dant gets stuck with a large legal bill and that even­tu­al­i­ty is an incen­tive to set­tle … even on bad patents.

There­in lies the pos­si­ble fix.  While win­ning a patent suit can net mas­sive dam­ages, loos­ing a patent suit has few costs.  Con­gress has been ret­i­cent to change or reform patent laws — wait­ing instead for the courts to sort things out.  This last item is one where the courts have no abil­i­ty to fix.  Costs need be assigned to the loos­er in the suit.  That minor change alone would slow the tide of patent law­suits which are in turn slow­ing inno­va­tion (counter to their stat­ed pur­pose).

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