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Are software patents "evil"?

You will hear here and there a lot of things about software patents. Some will consider them evil, usually developpers or open-source prone people. Some will see benefits in them, usually large companies. From here on, we can already see from where the "evilness" of the software patents are derived: The big guys like them, the small guys don't, hence they must be evil. But is there more to it than a modern David vs. Goliath? Are patents really evil in the sense they tend to favor the big guys? Are they promoting innovation (as they are supposed to)?

Let's start with a disclaimer: I will talk about patents in the U.S.A. only here. This talk will then be more or less applicable, depending on the country.

Software patents describe a way to register a method, or - in the software terminology - an algorithm. Once you have patented a specific method, you are granted the right to implement it alone, for a certain period of time which I do not remember, but is long enough. Note that the term "software patent" is also used when describing patents relative to hardware and software.

Let's take an example. Let's say I am designing a product which, "when moved over a flat surface (a table for example) will move a little widget (called cursor) on the screen". You will all have recognised a mouse. Let's say I invented that in the 50s. I could have patented the method, and nobody would have been able to create a device that could be described in the terms I patented.

This is all well and good so far: I have invented a thing, patented it, and I can now try and get it to the market without having to worry too much about soft/hardware giants throwing money in the pot and stealing it from me all too easily. But this is theory.

Some problems start arising when real people are mixed in the lot.

First of all, patents are applicable on the idea itself, not so much on the implementation of this idea. This becomes problematic when people start patenting fairly obvious ideas. Examples could be "If there is an error, I will display a message", "a device that is a grid of dots that can be turned on and off in order to display things" or "click on the question mark to get help". All these are fairly obvious and while it is a good thing to protect exceptional ideas of people, it is most certainly a bad idea to prevent people for thinking at all. Some ideas are bound to be had by a large population, and if they can be patented, then progress and innovation are impeded. People cannot think and implement freely the result of their thoughts without infringing on an existing patent.

Ok, but how can we define if an idea is complex enough to be patented? Well, for now this is a major culprit onto how the patents are implemented in the US. This task is delegated to the judicial system, as the USPTO (the patent office) will accept virtually anything to be patented.

The process becomes naturally very heavy, and thus easier to support for a big company than a small one, not even talking about an independant contractor.

Another problem with the current implementation of the patents is prior art. Of course, you cannot patent something that you did not invent. So if someone is able to find prior art (the same idea being used/talked about/implemented before you applied for your patent), your patent is automatically invalid. Again, this is nice in theory, for noone is doing proper research of prior art before applying for a patent. And it would seem the USPTO is not doing it either.

This is another task that will be resolved in court, but this time it is to be proven by the defense team, not by the attacker. Because you cannot prove that there is no prior art, you can just prove that there is. The legal system is quite reversed here, as the defense has to prove it is not guilty.

To conclude, I will just say that the current implementation of patents in the US is quite absurd to say the least. Anyone can patent anything, with a total disregard of the patent validity. This leads to a huge number of patents being filed, and renders the process of looking for existing patent quite impossible.

Categories : General rambling