October 15th, 2007
The real issue in the software patent fight
While the Linux Foundation promises to fight with the “same energy and effectiveness” as in the SCO suit, while Groklaw seeks prior art and own own Matt Asay sees conspiracies in the IP Innovation suit, I think it might be better to discuss the real issue here.
Good software is complicated, and patent law has no way to deal with this complexity.
Patent law is designed to protect unique inventions, better mousetraps. You can’t patent the idea of trapping mice, and you have to disclose how you trap the mice so other mousetrap makers can seek new ways to trap the mice.
Most patented products today are also unitary. A drug compound is one thing, a piece of medical equipment is one thing. You can protect how they do what they do, and you can protect their vital components, through existing patent law.
Software is many things. All complex software, especially an operating system, consists of many, many components which are combined to make the whole.
In our time, this has made single software programs subject to hundreds of patent lawsuits by people who claim they invented a component, or the idea behind a component, as in this case.
The idea of patenting software is only a decade old, and it came about because software was used to express inventions. The case which created patented software, State Street Bank & Trust v. Signature Financial Group, wasn’t really about software at all, but a “hub and spoke” network of mutual funds made possible through the use of software.
All of which has led, a decade later, to the mess we now find ourselves in, with coders facing a Rube Goldberg-like contraption of patent law which was not designed with their needs in mind at all. (That’s why we have that fun Milton Bradley game up there.)
None of this has ever been addressed by Congress, and the current Patent Reform effort is a Band-Aid, not a real fix. It deals with procedures, not the basic question.
These basic questions need to be asked, and answered, before a rational software patent regime could ever emerge:
- Can patents protect an idea, or just the way that idea is implemented?
- How can patent law enable innovation for systems which do hundreds of things at once?
- Why can’t software just enjoy the protection of copyright, which protects the code itself and lasts for 100 years?
None of these questions are being asked, let alone answered, either through the law or the fight over the law. It is past time for the entire tech industry to demand they be answered, for all time, before we’re all bound so tightly into law courts that we destroy this nation’s ability to innovate at all.
Dana Blankenhorn has been a business journalist for 30 years, a tech freelancer since 1983. You can follow Dana on Twitter. See his full profile and disclosure of his industry affiliations.
Subscribe to Linux and Open Source via Email alerts or RSS.
| 10/15/07
