Are software patents evil?

Categorized under Software

Software patents have constantly been under the fire of debates; if you are not yet exposed to it, following links are for you -

• Arguments against software patents
• Arguments against the arguments above

Patent system is more than 200 years old now. It was devised to address two main problems related to inventions -

1. You invent a great idea but someone else, who is more powerful than you, exploits it without giving back anything.
2. You invent a great idea but hide it from the world due of fear of exploitation.

Patent system offers an inventor a right – to control exploitation of his invention for a certain period. Now, it’s true that nature and economics of this relatively new software industry are quite different from other pre-existing industries. And so when the same system of patents is applied to it, as it is, we see many problems.

Opponents of software patents have been so far successful to point out those issues; for example -

• Softwares are much more complex in nature as compared to physical products. So by virtue, design of a software product ecompasses a lot more ideas. Larger the number of ideas, more the possibility of violating some patents.
• Ideas are easier to discover in software world as it’s devoid of usual physical constraints. Rather, the harder part is to select right combination of ideas and developing them into a right product. Patent system will unduely reward innovation and pose threats to a much deserving development phase.

These arguments are convincing. Agree. But don’t they equally fail to consider resurfacing of the old problems without patent system? In fact, the very argument that “software patents are evil” seems incorrect. It doesn’t say that “patents are evil” — what it says is that this, otherwise working fine system, becomes evil when applied to software industry. Though software industry has it’s own idiosyncrasies, the concerns with invention exploitation do exist here too. So then how is it going to help by just going back to square one?

Instead, the right ways to look for are -

• to narrow down the reasons behind software industry specific problems and figure out possible changes in the system to resolve (or reduce) those problem i.e. customize existing system.
• to discover a better sub-system specifically for software industry that would keep the advantages of existing patent system intact and essentially reduce (or remove) its industry-specific problems i.e. to devise a new better sub-system.

For example, one problem with software patents is the ease of innovation — new ideas are easier in this world without much of physical restrictions. So to address this concern, the criteria to reward an innovation can be raised higher. Along with the requirements of novelty and unobviousness, an additional requirement of complexity can be added specifically for software patents. Now these kind of provisions needs careful considerations. For example, it’s possibe that someone applies for an actual software idea but makes it look like (hardware + software) combination by adding some hardware-like words in title and description. The intent behind such behavior will be to circumvent the additional criteria. In such cases, the same complexity criteria could be extended to (software + hardware) combinations unless the hardware part itself consists of considerable innovation.

In short, it’s always easier to point out problems in a generic system and patent system is certainly not an exception. But it would not be wiser to just get rid of the whole system — especially when we know why such system exist.