Today on Radio New Zealand National I talk about the deranged world of software patents, where someone can claim that an idea they had five years ago suddenly means that entire industry owes them a fortune. I’ll be on after the 11am news.
Today, I’d like to talk about software patents.
Q: A patent is…?
A: Essentially it’s a government-granted monopoly on an idea. You design, say, a revolutionary new vacuum cleaner technology. Maybe you came up the spiraling air thingy which many of the better ones have today. And you can get a patent on that so that anyone else who uses that technique has to pay you a licence fee.
Q: How do you get a patent?
A: In principle, what you have to do is write out your idea, with drawings, and assert that it’s entirely a new thing, then send it off the patent office – in New Zealand that’s called the Intellectual Property Office of New Zealand – and wait for a long time, answering any questions they might have. The patent examiner will need to be convinced that it’s a new idea – there’s no “prior art” in patent jargon – and that it’s not an obvious or trivial idea. In practice you ask a patent attorney to arrange it for you.
Q: How long does it take?
A: Years, it seems. And patents have a finite life as well. They are there to reward innovation. The idea is that getting that spiraling chamber on the vacuum cleaner working would take a lot of resources and that we want people to risk having no income for while they develop something like that in order that they might get a bog payoff at the end of it.
Q: Do you think they are a bad thing?
A: Not really. I’m persuaded by the argument there should be a mechanism for that people who back themselves and put a lot of work into a risky venture have an opportunity to make some return if they were right. I think they encourage innovation, by and large, in that scenario. What I do have a problem with is software patents.
Q: Why do you patent software? I though software was copyrighted?
A: Software certainly is copyrighted, most of it anyway. Incidentally it’s not true that free and open source isn’t copyright. Free software in particular is subject to strong copyright provisions. It’s just that the owners of free software mostly don’t charge you money to use the software – but they do use copyright to place restrictions on you, mainly to prevent you taking the free software and incorporating into your own works without passing them on.
So, with software copyrights you have a legal way of making money off selling your software if that’s what you want to do. Put another way – you don’t have to think that all software should be given away for nothing, to think that software patents are a bad idea.
Q: Why are they a bad idea?
A: Several reasons: 1) There is no benefit. Patents are intended to incentivise innovation by allowing an inventor a monopoly they can exploit for money. There is no shortage of innovation, however, in countries and communities that do not use software patents. The whole of Linux would be a good example.
2) There is serious harm in software patents, because they prevent others from using ideas. The whole of our technology, and in fact our whole culture as the human species, is built upon us using ideas others have had and developing them further.
3) Software patents lead to unintended bad consequences. Software patents have proved hugely detrimental in the US where they are often used for anti-competitive purposes. Just the threat of being sued over a software patent is often enough to stop a new product in its tracks, without that patent ever reaching court and being tested.
4) There is a large deadweight cost in legal fees and court costs which simply does not exist without software patents.
5) They can’t be awarded fairly. Patent offices overseas have proved incapable of determining what a valid software patent is and have consequently awarded patents on all kinds of obvious things. Sometimes these get overturned some years later after pressure from the community, but often they hang around and frustrate new software. Bill Gates is on record as saying “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” He worried that “some large company will patent some obvious thing” and use the patent to “take as much of our profits as they want.”
There’s a delicious irony going on in the strange world of software patents at the moment: you’ll recall that last year I was spitting tacks at a certain large software company – Microsoft – that was demanding that it’s own format for saving office documents be made a world standard. One of the main features Microsoft proudly touted was that its format would allow the saving of custom XML – effectively user-defined information in a standardised framework. Their standard was eventually endorsed by ISO, even though several countries including New Zealand argued against it, partly on the grounds that there might be patents getting infringed.
What has now happened is that a company has successfully claimed in a US court that it owned a patent on saving custom XML features in word processing documents and it has got an injunction against Microsoft preventing it from selling copies of Word in the US.
Q: So you can’t buy Microsoft Word in the US any more?
A: You can, because the injunction doesn’t kick in for a couple of months. Nobody seriously expects Microsoft to have to stop selling Word – they’ll just apply a very large amount of money and lawyers to the problem, and either buy the other company outright or apply huge legal pressure to get the thing overturned. And the joke is that anyone who understands formats would know that the idea of saving custom fields in XML documents is totally obvious and the patent should never have been granted in the first place. It’s like getting a patent for walking a dog with a chain instead of a lead. So this highlights my point that the whole software patent regime is a total mess and ends up achieving nothing but enriching patent lawyers.
Q: Are there software patents in New Zealand?
A: There are some, mainly which have been granted overseas and taken into our patent system from there. There was a Canadian company a few years ago that threatened to sue New Zealand e-commerce websites because it said it had a patent on the whole area. I’m happy to say some people faced them down and got the patent overturned in court. That kind of thing happens from time to time but its really expensive. The government is considering right now, in a Patent Bill that’s before a Select Committee, what we should do about software patents in New Zealand. And I’m very clear that our law shouldn’t allow them.
Microsoft hoist by their own patented petard.