I don’t know much about patents or the legal theory around them. But I do know about the practice and profession of developing software.
Like alcohol prohibition, patent law is based on myths and assumptions about what should be, not what is. Sometimes it works as intended, but it also has steep costs to society, and it might not be worth it — or, more likely, it might need to be scaled back.
Patents have a clear goal, as Dr. Drang quoted from the U.S. Constitution:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Excluding copyright (“Writings”), which I believe is a net positive, this implies that:
- Science would not advance sufficiently without inventors being able to legally prohibit others from copying or using their discoveries.
- The act of invention, not production or bringing to market, is where we want to place the most value as a society.
- The value we place on the act of invention is higher than the cost imposed on the rest of society by not being able to use the invention freely.
In practice, I don’t believe that any of these apply to many patentable “inventions”. Software and business methods, in particular, are extremely problematic for that last assumption.
But there’s a bigger argument against software patents.
Look around the world of modern software. It expands and advances so quickly, and so much innovation is contributed by such small firms and authors, that very little software is patented.
And we’re fine.
Someone figures out a great new technique to use on a shopping site, they benefit immediately, then everyone else adopts it and they benefit, too.
I figured out lots of ways to detect “body” text for Instapaper’s text parser and patented none of them. Many others figured out the same metrics before and after I did and made similar text parsers. We all benefitted.
I invented many useful behaviors in the Instapaper bookmarklet. Many of those have been copied, too. And I bet I thought I “invented” something that someone else had already done years ago. Lots of people have done the same things as lots of other people in software without acquiring or wielding patents.
The entire software industry works like this, and the use of patents is very rare relative to all software that’s written. The market rewards applied innovation, but doesn’t try to artificially inhibit competition. It combines the best parts of capitalism, collaboration, and a vast public domain.
Our industry is booming, innovation is rapid and rampant, and everyone’s making a living. The world could benefit immensely if more industries could innovate as rapidly and significantly as the software industry. We’re doing great, almost entirely without using patents.
The best argument against software patents is that we don’t need them.
And I bet we’re not the only industry that’s better off without patents.