Thursday, July 16, 2009

The need for software patents

While I'm not really active anymore in the software patents debate, I still have my Google alerts for various patent-related keywords. Occasionally, these alerts point to blog posts I can't resist answering.

Two days ago, Gartner's Brian Prentice argued Why We Need Software Patents. His argument is basically that copyright has become much less useful over time to protect software investments, particularly with the uptake of open source, and therefore not granting software patents will encourage IT companies to start lobbying for draconian trade secret enforcement laws.

I disagreed with some of his premises and posted a comment, but somehow it's still stuck in the moderation queue (update: after the discussion died out, he did allow it through). So I'll just post it here, slightly edited.

I think this premise is invalid:

“If you hope to have a viable, long-term commercial IT concern you had better be able to protect your ideas from being copied, not just the specific codification of them.”

Patents can obviously be a nice tool to help thwart competition (although the competition can do the same to you, unless you’re a basically non-producing entity, or a large company vs an equally large or smaller company), but I disagree that being able to patent the basic concepts underlying your software is a requirement in any way to “have a viable, long-term commercial IT concern”.

See for example the 2003 German survey on software patents by one of the Fraunhofer Institutes, slides 15 and 16 (the primary sector are software development companies, the secondary sector are traditional industries developing software for internal use such as machine control). These companies mention many other business tools besides patents (and copyright) that are much more important to maintaining their business success.

The 2003 FTC survey came to similar conclusions about the software sector, and even to some extent also for the computer hardware and semiconductor sectors.

Later on, he states:

It is critical to understand that copyright is in the middle of a transition in information technology. It is becoming primarily a mechanism to support community-owned assets. It is of rapidly diminishing value in protecting entity-specific assets. And that can be put done to one simple factor - Open Source Software!

I do not see how the increased usage of copyright in the context of open source software would inherently diminish its utility to cover closed source software. Where does this relation come from?

As far as I understand, a major reason for companies to increasingly work on and use open source software, is because it’s a good way to share (and thereby reduce) costs for basic infrastructure that, even if done exceptionally well, provides little or no competitive advantage in and by itself. As a result, they can focus more resources on stuff that does give them a competitive edge. For this latter category, they often can still use copyright in exactly the same way as before, witness e.g. Apple.

In fact, I think that the only thing that has severely weakened copyright protection of software over time is exactly the proliferation of software patents. In their absence, copyright guarantees that a company can sell/distribute software that it produced itself. With software patents in the picture, software copyright guarantees very little in terms of business value (only that people cannot copy or reverse engineer it willy-nilly, but who cares about that if you’re not allowed to distribute it yourself in the first place, or at least not without paying rent seekers?)