A Generation of Software Patents Examined

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."

Comments

Oh Patents

[Morphine007]

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.

Re:Oh Patents

[Anonymous Coward]

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.

Re:Oh Patents

[mellon]

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.

Re:Oh Patents

[mellon]

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.

Too Expensive

[jellomizer]

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.

Interesting Points

[Pop69]

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 ?

Re:Interesting Points

[Maximum Prophet]

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.

Re:Interesting Points

[Pope]

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

Re:Interesting Points

[Morphine007]

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

Re:Interesting Points

[robot256]

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.

Anecdotal evidence that they don't

[Beryllium Sphere(tm)]

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.

Really useful

[ciaran_o_riordan]

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

Incompatible

[Nethemas the Great]

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..