Normally, if you have a great idea, you can try to prevent others from cashing in on your invention by patenting it. The pharmaceuticals industry is the major one these days. Drugs take such a long time to get to market and have to go through so many tests and regulatory hurdles that the standard 20 or 25 year patent really doesn’t seem to give the pharma companies long enough time, even with a patent monopoly, to get their money back. Still, they don’t seem to be going bust.
But what about software? Can you patent a software program? Should you be able to? Now this is a legal minefield, and I have to say I’m not a lawyer (if I was, I’d be a good deal richer than I am now). But it seems to me that, in most cases, software copyright should be sufficient to protect the author of a program: you don’t need to go to further. There are some cases where an algorithm is sufficiently original to be patentable – the RSA one that encrypts transactions over the internet for example, or the Unisys LZW patent covering the GIF format (both expired now, incidentally). That seems ok to me, but the Amazon ‘One Click Shopping’ patent is just ludicrous.
The outcome of companies like Amazon and the like patenting everything under the sun is the emergence of ‘patent trolls’ – companies and individuals who exist solely to patent software (or purchase existing patents) and then attempt to extract money from users of the patents. If you don’t patent your ‘Little Pinkie Typing’ technique, then someone else will – and then proceed to charge you for the privilege. It’s sort of like an escalating patent ‘pre-emption’ war, with everyone patenting even the most obvious ideas before a rival gets there and does the same.
On the other hand, software patents do serve to put the brakes on the more outlandish activities of companies like Microsoft, who seem to think that if they haven’t invented it, it’s theirs anyway. Microsoft has settled a $60m suit with Burst over some media player software and is currently appealing a $525m suit with the University of California.
But the most famous recent case is the one with the mighty eBay pitted against the tiny MercExchange over the patents that MercExchange holds over internet trading. This one went all the way to the Supreme Court, with the final decision being that MercExchange could not shut down eBay even though it did hold a valid patent. I don’t know the merits or otherwise of MercExchange’s patent claims, but I do know that MercExchange didn’t build an eBay out of them. Why then should MercExchange be entitled to shut down eBay – effectively holding it to an unlimited ransom – over a fairly trivial (to my mind at any rate) ‘invention’?
This is getting crazy. If everything is patented then it really will put a brake on innovation. Why build an IDE for Ruby - to take an example close at hand - if some parasite who hasn’t done any of the work comes along after the event and demands a slice of the action (can someone really patent the very idea of doing a Ruby IDE? - stranger things have happened)? Personally, I take a robust capitalist viewpoint over this: if you want some of the Ruby IDE market, do the hard (very hard, btw – it really is not easy) work and build a better one.
And may the best IDE, not the best lawyers, win.
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