Why abolish software patents

This is a rough article to make a long list of all the arguments against software patents. This will be used as a base for drafting work in the coming weeks and months as well as in the upcoming Bilski case and maybe the New Zealand legislative proposal, and other Current events.

Existing articles

• The disclosure is useless
• Harm to standards
• Blocking innovation and research
• Harms to education
• Software innovation happens without patents
• Freedom of expression
• Less choice, more monopolies
• Preventing competition - lower quality, higher prices
• Software patents harm SMEs
• Preventing competition and entrenching monopolies
• Patent trolls, or "parasites" or non-practising entities
• Used for sabotage rather than competition sometimes called "business weapons"
• All businesses are targets
• Jobs and skills
• Incompatible timespans
• Costs of the patent system to governments
• Quality of software patents is particularly bad
• Software is math
• Infringement is unavoidable
• Blocking useful freedoms
• Speculation
• Publishing information is made dangerous
• Just a Use of the Patented General Purpose Computer

List of ideas

Arguments specific to software patents

• (Software is math) Since the logic (idea) of software can be reduced to mathematical formula (idea) with Church-Turing Thesis, and because mathematical formula (idea) is not patentable, software should not be patentable as well.
• Since the only requirement to develop software is a commodity computer, which is very cheap, software should not be patentable just as authoring a book that only requires paper and a pen, which are very cheap, is not patentable.
• The now obvious "auto-filling" feature of spreadsheets is patented and not available in builds of free software office software for certain distributions.[1]
• Working with unencrypted (no copyright protection) DVDs is not possible without violating patented codecs.
• As of 2009, firms involved in developing HTML as an open standard with embedded video support could not recommend a video format because of the risk of patent encumbrances.
• Most software patents describe the problem that the claimed "invention" solves but they don't detail *how* it is solved e.g. at least with design and implementation. As a result, all solutions to the problem are patented (and not just the one which is implemented by the patent applier).
• The computer, which can perform any computation specified by a table of numbers ("instructions") is already patented. Any particular computation thus performed is a subset of behavior already patented in the patenting of the computer itself.
• The significant body of prior art software is confidential, unsearchable, and inaccessible. All publicly accessible software is prior art to all later filed patent applications. But, except for Open Source Software, most software is made public in a format that hides the disclosure and user agreements prohibit reverse-engineering the code. Thus, many patents cover inventions that have been in the public domain for years.

Software arguments that could apply to patents in general

• After 20 years, the disclosed ideas are almost all useless
• Companies in the software industry are banding together for the sole purpose of patent defense (ex: OIN), illustrating the system is broken.
• In the United States, the Constitutional purpose of patents is to "promote the progress of science and useful arts", but there are numerous studies and reports showing that software patents retard progress, and have a great cost to the economy.
• Software is usually built upon thousands of different ideas, which all could be patented. There is not one patent for one product, as it is mostly the case for physical products.
• Arguments /against/ software patents really shouldn't even be necessary and the anti-software patent side should not allow itself to be forced into a defensive position simply because of the historical status quo. The burden of proof rests upon the shoulders of software patent defenders and advocates. The only acceptable justification for the negative ethical and economic consequences of patent eligibility for software would be hard evidence demonstrating that it substantially increases technological progress and economic and social welfare despite the harm it does.

Arguments against patents in general

• SMEs and individuals can't afford to do patent searches
• SMEs and individuals can't afford to defend themselves
• When a standard is patented, the only way to avoid the patent is to avoid the standard
• There is no practical disclosure of the patent due to the sheer volume of patents and the legal risks that arise from non-patent lawyers interpreting patents. (so there is little benefit to society from granting the company a monopoly in return for disclosure)
• Patents dampen the competitive drive that feeds capitalism.
• It's too difficult for the patent office (or anyone else) to consistently and objectively assess the worthiness of a patent (how to prove non-obviousness ?). Many patents are overturned when they reach the courts (citation needed) which suggests current assessment methods are not good enough.

Bibliography

• Math You Can't Use by Ben Klemens (2006)

Related pages on ESP Wiki

• Studies on economics and innovation