Software patents are a Very Bad Thing

I got a call today from a reporter who asked me for my feelings on software patents. He was trying to do an even-handed piece about how software patents might be bad but they might encourage innovation, blah, blah, blah. I found myself going on a rant about the evils of software patents.

A few weeks ago, I got a call from a high-end law firm that is defending Salesforce.com from patent trolls wielding a patent that contains material from a product that I built in 1998, was filed in 1999, and was granted in 2012.

This patent is a classic that demonstrates many problems. It is a very broad patent that could apply to almost any piece of project management software. It comes from a filer that never built any software, and is now being used to threaten people that ARE productively delivering software. The amount of money that will be spent on litigation around this patent will be larger than the amount that I spent to develop the related software, and infinitely larger than the amount the alleged “inventor” spent. It was buried, invisible, in the system for 12 years, and it has now surfaced to wreak destruction. It’s not original work. It’s a mashup of techniques that have been common in project portfolio management for decades, standard management consulting charts, and outright misappropriation. Many of the drawings in the patent filing were cut and pasted from my work, and in fact have the URL of my former company on them.

Here are some of the points that I made to the reporter:

Software patents are are important because software is an important part of so many products in our economy. Software is in any Internet enabled service, it is in billions of devices, cars, and houses. It runs government services, professional services, and any kind of delivery or manufacturing process. Almost any innovative product includes software innovation inside it, or at some point in its manufacturing and delivery.

Software is different from the machines that patent law was designed for, because every significant piece of software has hundreds or thousands of features and hundreds of libraries. Any of those features and any of those libraries can be the subject of a patent that sneaks through the US patent office. The probability that a patent troll can go after any given piece of software with a patent lawsuit is close to 100%. Therefore, every piece of software is vulnerable to patent trolls. If they get what we want, our economy will grind to a halt. It will be a new dark age that will destroy everything fun and innovative in the American economy.

Against this, we have the feeble argument, raised by the reporter, that profit margins for software companies would go down if software patents were eliminated. Actually, profit margins would go up significantly. Most of the profits generated by patents go to lawyers and non-productive entities. Most of the cost are extracted from the budgets of productive software producers.

“Investment and innovation would be reduced without patent protection” is a lie. In 30 years of working with software producers and innovators, I have never heard anyone say they were investing in software improvements with the assumption that they would be protected by patents. Why? because the useful life of software is less than the time required for a patent grant. Software is useful for about four years. Then, it gets replaced with something better. Patent grants often take longer than four years.

Even worse, software patents discourage investment because they create fear and uncertainty. Patent applications are barely visible until they are approved many years later. You can take every precaution to comply with IP laws while you invest in a new product, and still be assaulted later. Every product and service in development now could be the subject of a hidden patent application.

Software patents are not filed to encourage or protect real investment. The reason that software developers file for patents is to protect themselves from patent trolls. Now, we have a “first to file” system that forces us into a vast number of patent filings to protect us from the lawyers that are trying to file patents that will block us from our own work.

Ideally, the system would be changed to eliminate software and business process patents. These are the broad patents that threaten every innovator in our society. They result in ridiculous patent language about “said processor” and “said storage device”. We should bring patents back to the concrete machines they were designed for. A less intensive reform would be to expose patent application process much earlier and more completely to public criticism, to eliminate the broad, illigitimate patents that are causing so much trouble.