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A Generation of Software Patents Examined

Posted by timothy on from the malfeasance-calumny-and-waste dept.

pieterh writes "Boston University's James Bessen has published a landmark study [abstract; full paper available at the link, free of charge] on a generation of software patents. Looking at almost 20 years of software patents, he finds 'that most software firms still do not patent, most software patents are obtained by a few large firms in the software industry or in other industries, and the risk of litigation from software patents continues to increase dramatically. Given these findings, it is hard to conclude that software patents have provided a net social benefit in the software industry.' Not that this surprises anyone actually innovating in software."

23 of 53 comments (clear)

  1. Oh Patents by Morphine007 · · Score: 4, Interesting

    They're definitely a contributing factor as to why I'm still in academia, rather than trying to start a software shop with my CS degrees.

    --
    Oh god, that woman is John Romero!
    1. Re:Oh Patents by Morphine007 · · Score: 2

      I guess I should say "Oh Patent trolls" and not just "Oh Patents"

      --
      Oh god, that woman is John Romero!
    2. Re:Oh Patents by Anonymous Coward · · Score: 5, Informative

      The current case of LodSys (Google it or search on SlashDot) suing small iOS app developers and individuals is one example that little people can get in big trouble because of software patents.

    3. Re:Oh Patents by mellon · · Score: 3, Insightful

      You know, when I see a 700 million dollar settlement over a garbage patent that was later overturned, and I think about how that would have affected me as a small software developer, what I do *not* think is "all hype and no bite." What I think is "I could lose my house." And so I work for a corporation, so that if/when that corporation gets sued out of existence, I will be on the far side of the firewall, and all I will lose is my job.

      People who say this is a small issue that won't effect them either aren't software developers, or are whistling past the graveyard.

    4. Re:Oh Patents by terminalhype · · Score: 2

      "Perhaps you should leave Academia for a while and see how the rest of the world works, consider it a Sabbatical. In actually the For Profit industry isn't as bad as it seems."

      Or..."Come into my parlor" said the spider to the fly.

    5. Re:Oh Patents by mooingyak · · Score: 2

      You know, when I see a 700 million dollar settlement over a garbage patent that was later overturned, and I think about how that would have affected me as a small software developer, what I do *not* think is "all hype and no bite." What I think is "I could lose my house." And so I work for a corporation

      You can start your own corporation. You have to keep your personal assets and corporate assets distinct from one another and some other fun accounting headaces, but it serves as the exact protection it sounds like you want.

      --
      William of Ockham had no beard. The most likely explanation is that it was chewed off by squirrels every morning.
    6. Re:Oh Patents by Anonymous Coward · · Score: 2, Insightful

      Actually the problem is when you're starting to get big. Being small isn't an issue and being huge isn't an issue it's the in between when they kill you and force you to sell your ideas to someone who can afford to defend against the lawyers. If you explode onto the scene alla Facebook then no worries because there isn't time for the slow moving legal system to get you and by the time they get there you're 100% right you can work something out.

      Most firms aren't like Facebook however and experience a more linear growth for years before every become explosively big (if they ever do). These are the guys who patents kill. Innovation doesn't just happen in the wildly explosive successes. It also happens in the slowly grown firms and sometimes that is the foundational work that allows for future explosive successes. Software patents are definitely a deterrent for the normal growth profile of a firm. If you happen to get lucky and not need the linear growth period the good on you but for the rest of us being sued into stagnancy while trying to succeed is painful.

    7. Re:Oh Patents by brainzach · · Score: 2

      The biggest obstacle of breaking into the app market is creating a quality app and marketing it so people will buy it.

      The Lodsys patents are completely unfair and we don't like being taken advantage of, but the amount of money they are asking for is less than 0.5%. It won't stop anyone from implementing their killer idea to make money.

    8. Re:Oh Patents by mellon · · Score: 3, Informative

      Actually no, you can't start your own corporation. I mean, you can, but it won't protect your personal assets if the person suing you can show that the corporation exists only to serve as a firewall. If the corporation is a real company that employs real people, that's a different story, but if it's just a shell, it's of very limited value. The only lawsuit it will protect you from is one where the additional cost of making the case that the corporate veil should be pierced is prohibitive. That's not the sort of situation that you'd be in if a patent troll came after you and you had significant assets.

      Think about how it looks to a court: you make a corporation, and the corporation makes a bunch of money, infringing some patent in the process. All of that money is paid out to you, or else goes to pay the minimal expenses that are involved in operating a corporation of this type. And then when someone comes after the corporation to be made whole as a result of the patent infringement, there's no money, because it's all been drained into one bank account: yours. Making the case to pierce the corporate veil here is a slam-dunk.

  2. Too Expensive by jellomizer · · Score: 3, Insightful

    Patent process are too expensive for the average Programming shop. As well many of their innovations are not produced in systems for the general public but for their customer. The time it would take to write up the patent application get it approved etc... Could takes days or weeks of work away from working on a project that can bring revenue now.

    Big companies that can produce software to a large scale (write once copy a million times) have the ability to deal with Patents, as once the product is released it is making money and will bring in a stream of revenue for a while, giving time to make formal patents and do R&D.

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    If something is so important that you feel the need to post it on the internet... It probably isn't that important.
  3. Interesting Points by Pop69 · · Score: 3, Interesting

    The language in the US Constitution says

    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.

    If software patents do not promote the progress of science and useful arts are they not unconstitutional ?

    1. Re:Interesting Points by Maximum+Prophet · · Score: 3, Informative

      If software patents do not promote the progress of science and useful arts are they not unconstitutional ?

      Lawrence Lessig tried to argue that about retroactive copyright extension before the Supreme Court. He lost.

      --
      All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
    2. Re:Interesting Points by Pope · · Score: 4, Informative

      That's because his argument, as told to the Court, sucked. He wrote about how he botched it afterwards.

      --
      It doesn't mean much now, it's built for the future.
    3. Re:Interesting Points by Morphine007 · · Score: 5, Insightful

      I don't think so.

      The argument being made is that securing those rights (at least, using the current methods) doesn't actually promote that progress. So I suppose it could possibly be interpreted that the current system doesn't fulfill the intent of that portion of the constitution. Which might make the current process for obtaining a patent unconstitutional.

      However, to claim that it makes patents themselves unconstitutional doesn't seem valid.... but, again, one could draw the conclusion (with a lot more evidence, I'd think) that progress in science and useful arts can't be promoted via granting parties exclusive rights to writings and discoveries at all... which would mean that the portion of the constitution that you quoted would have to be deemed as being sel-conflicting and therefore stricken from the constitution or amended... and while that claim might actually be true, I don't think getting it amended would be easier than revamping the patent system/process

      --
      Oh god, that woman is John Romero!
    4. Re:Interesting Points by Morphine007 · · Score: 2

      In the case where companies with a large patent portfolio are actually spending billions in R&D, I'd say you have a massive point, and that any claims made by anti-patent folks that patents are stifling innovation would be extremely difficult to substantiate... and that those claims may not even have any basis in fact.

      However, in the case of companies with a large patent portfolio that do little to no R&D (with companies whose sole business case is patent trolling being the most obvious case), I would think that the claims made by anti-patent folks would need no substantiation at all...

      --
      Oh god, that woman is John Romero!
    5. Re:Interesting Points by chemicaldave · · Score: 2

      SCOTUS, understandably, simply does not have the time to hear cases twice. It's not the legal system's fault Lessig botched his argument.

    6. Re:Interesting Points by Grond · · Score: 2

      This is not true. From Morton Salt Co. v. GS Suppiger Co., 314 US 488, 492 (1942):

      The grant to the inventor of the special privilege of a patent monopoly carries out a public policy adopted by the Constitution and laws of the United States, "to promote the Progress of Science and useful Arts, by securing for limited Times to . . . Inventors the exclusive Right . . ." to their "new and useful" inventions. United States Constitution, Art. I, 8, cl. 8; 35 U.S.C. 31. But the public policy which includes inventions within the granted monopoly excludes from it all that is not embraced in the invention. It equally forbids the use of the patent to secure an exclusive right or limited monopoly not granted by the Patent Office and which it is contrary to public policy to grant.

      The Court identified promoting the progress of science and useful arts as a public policy that limits patent rights. Admittedly, this is a high bar, and patent misuse (the issue in the Morton Salt case) is rarely a successful defense to infringement, but the principle is there.

    7. Re:Interesting Points by robot256 · · Score: 3, Insightful

      So? Are you defending a system that relies on a single person's single argument to save the entire society from an unconstitutional law that should never have been passed in the first place? Sounds like there's a bit of a weak link in the chain.

    8. Re:Interesting Points by brainzach · · Score: 2

      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.

      Copyrights and trademarks are the tools to protect the rights of inventors and promote progress of the software industry.

      Most of the value in the software industry comes from the implementation of ideas and not the idea itself. If you spent millions of dollars developing a type of software, chances are a competitor will have to do they same so there are already barriers of entry.

      Copyrights are able to protect someone from directly copying your work, but they don't stop anyone from independently implementing a better version. You can still build a better mousetrap.

      They should just treat all forms like of software like video games. You can copy all the ideas you want, but your specific implementation of the idea and artwork will be protected. Imagine if someone patented first person shooters or if someone patented the idea of using a device to trap mice.

    9. Re:Interesting Points by dachshund · · Score: 2

      That's because his argument, as told to the Court, sucked. He wrote about how he botched it afterwards.

      Whatever. I've read Lessig's apologia, and while I appreciate that he's humble about it, there was absolutely no way that the court was going to overrule Congress and the largest media companies in America.

      He made a legitimate constitutional argument, the court sidestepped it, and that was that. It would be nice to live in the world where the Supreme Court cared about copyright terms, but we don't live in that world. Lessig should know.

  4. Anecdotal evidence that they don't by Beryllium+Sphere(tm) · · Score: 4, Interesting

    I got called in for a deposition when $BIGCOMPANY was sued for infringing a patent on $OBVIOUSTECHNIQUE in $FIELD. The level of inefficiency in the proceedings was staggering, particularly since the project I was on hadn't even used $OBVIOUSTECHNIQUE. One of $BIGCOMPANY'S attorneys told me that progress in $FIELD has halted due to fear of patent litigation, which anyone much smaller than $BIGCOMPANY couldn't possibly afford.

  5. Really useful by ciaran_o_riordan · · Score: 5, Informative

    To slashdotters, this may be "duh" science, but it's really important to have this on paper when we talk to judges and legislators. Otherwise, we're left explaining the problems and hoping that the legislator will agree that our logic is "obviously" correct.

    Bessen also co-authored Patent Failure with Michael Meurer and a previous study An Empirical Look at Software Patents, along with Robert Hunt.

    http://en.swpat.org/wiki/Studies_on_economics_and_innovation
    http://en.swpat.org/wiki/James_Bessen
    http://en.swpat.org/wiki/An_Empirical_Look_at_Software_Patents

    --
    Expert in software patents or patent law? Contribute to the ESP wiki!
  6. Incompatible by Nethemas+the+Great · · Score: 3, Insightful

    The patent process takes longer to complete than the lifespan of most software products. Writing software patent applications would pull valuable engineering resources away from where they're needed most, engineering. If everything that "could" be patented "was" patented then no one would be able to write software without infringing upon someone else's patent. This is largely the case already. Most dev houses get away with infringement because they are either not big enough to bother frying and/or the infringement is non-obvious and they fly under the radar. The expense of patenting from authorship, to lawyers, to application, through to approval is prohibitive. Enforcement of patent rights is reserved for those with war chests large enough to field the researchers, lawyers and court costs, etc..

    --
    Two of my imaginary friends reproduced once ... with negative results.