Preamble

I write this article out of concern for the future of my craft and it’s practitioners. Like many, I’ve been developing software since childhood (My 8th birthday present was a TRS-80).  As ludicrous as it sounds, we software developers live in a world where extortion is not only allowed but is actively encouraged and codified into law by many governments.  I’m of course speaking of patent systems.

Where I Stand

I’m not against patents per se. However, being a software developer qualifies me to understand where they succeed, where they fail and WHY.  This article captures my thoughts on the topic and I’d love to hear the opinions of others. (mail me: jay@jayfuerstenberg.com)

Where Patents Work

The patent system, in a nutshell, aims to reward inventors and innovators with limited-time exclusive rights to implement a product. The logic being that, without this incentive, companies and entrepreneurs might never invest resources to drive innovation forward. Nations then might become less competitive and end up buying more of their products from abroad. This would lead to job losses and whatnot so patents are the silver bullet to prevent this from happening.  Great!

My favorite example of where patents go right is the story of a Japanese company, HARD LOCK Industry Co., Ltd. Through trial and error this company spent years researching how to make a screw that never loosens. Yes, you heard me correctly, a screw that NEVER loosens! HARD LOCK holds 50 registered patents regarding the various technologies involved in keeping a screw in place.

Their screws are employed in a variety of areas such as heavy machinery where high vibrations would cause any other screw to eventually nudge loose and fall out. If you’re lifting a steel beam with a crane when a screw loosens and something goes wrong millions of dollars of damage and even the loss of human life may result.

If you can grasp how beneficial HARD LOCK’s contribution to humanity is proceed to clap your hands now. The patent system did, and awarded HARD LOCK the limited-time exclusive rights to the technology. HARD LOCK’s competitors cannot simply walk in, reverse-engineer their hard work and sell the same thing at a reduced price (reduced because less R&D goes into reverse-engineering). And this is as it should be.

Where Patents Fail

Wait, wasn’t this article supposed to address the evil of software patents? Yes, and to get to that we need to first consider why the software world is nothing like the real world you and I inhabit.

What most people fail to understand (or perhaps don’t care to) is this: Unlike the real world that we are still learning to master, the software world was made by… WE HUMANS.

We designed and created the CPUs, the RAM memory, the hard drives and all the other hardware components that go into a computer, and for one purpose…. so we could have a framework within which to host the software world.

Software is another creation of us cool humans. If you’ve ever watched The Matrix what I’m about to explain will be old hat to you. The reason it’s called SOFTware is that it can be changed at will. In fact, software is infinitely malleable and can model any concept that its developer conceives. The reason software should therefore never be patentable is because there is little to no challenge in creating it. Let me demonstrate this for you…

Here is my software screw (in the Java programming language) that never loosens.

public class Screw {

	/** Screw tightness from 0.0 (fallen out) to 1.0 (tight and snug) */
	private float tightness;

	public void ensureTightness() {
		if (isLoose()) {
			// I'm loose so tighten me!
			tighten();
		}
	}

	private boolean isLoose() {
		return tightness < 1.0f;
	}

	private void tighten() {
		tightness += 0.1f;
		if (tightness > 1.0f) {
			// Whoa, too tight!
			tightness = 1.0f;
		}
	}
}

It didn’t take me years of blood, sweat and tears to make this as it did for HARD LOCK. It took less than 2 minutes for me to write and review its correctness. While I’ve developed in Java for 14 years, even a developer with as few as 2 months Java experience could accomplish the same implementation in the same time frame.

The point I’m making here is simple, this isn’t the real world. There are no physics to conquer, no biology or chemistry to balance, no gravity to obey.

I and my fellow software developers are masters over the software worlds we create and we make the rules by which they abide. As a consequence, there is very little, if any, R&D needed to create software.

This is patently evident in the software development democratization explosion we have been and are continuing to witness in the smartphone industry. Even before smartphones and the Internet, the software world NEVER needed patents as incentives to innovate. The barrier to entry was already low enough. And now with the Internet, it is only getting lower as computers become ever more affordable and the skills/knowledge more transferable. Time and time again, the only thing software patents have proven themselves to accomplish is the stifling of innovation.

Enter the Patent Trolls

Until recently we software developers did not give much thought into defending ourselves from patent trolls. Only recently have patent trolls stepped up their offensive tactics.

What is a patent troll? The term is seen everywhere these days and I imagine most readers who made it this far know the answer. But for those who’d like an introduction, patent trolls are entities who lurk in the dark, waiting for somebody like myself to independently implement something. That something somehow bears resemblance to a diagram or a process they wrote on a paper and submitted to their government. When I stumble into a troll’s hiding grounds, it’ll pounce on me, claiming to own the exclusive rights to implement the idea it says I infringed upon. So am I in the wrong?

What makes patent trolls different from companies like HARD LOCK, is that patent trolls don’t bother implementing the ideas they think they own.

Imagine if HARD LOCK never made screws at all, but still patented the ever tight screw. If another screw manufacturer decided to contribute ever tight screws to society HARD LOCK could not only stop them from selling them but litigate the competitor right out of business. And believe it or not, currently this is entirely legal in many nations. The reason we don’t see patent trolls asserting themselves as much in the real world as we do in the software one is because, again, overcoming physics is a hard thing to do and HARD LOCK’s competitors might never figure it out. If it were easy the HARD LOCK screw would’ve been invented ages ago.

It warrants repeating at this point that software is infinitely malleable. Software developers all have great ideas for products and while they may be innovative, none of them is truly unique. Usually we are just recombining design patterns to solve well known problems that have existed for decades and where the solutions are openly documented for all to see and use.

Development is a creative endeavor and we don’t reference the patent office’s full collection whenever we carry out our craft. So it stands to reason that we are unknowingly infringing upon software patents on a daily basis.

If you were watching the earth from orbit and could visualize each instance of a software patent being infringed upon as an exploding building you would not like what you see. Most if not all the ideas that can be modeled in software have people claiming to be their owners. Do you believe an idea can become property?

I Don’t Develop Software. Why Should I Care?

Not everybody makes software but almost everybody uses it. Sometimes it’s the big software maker that gets punished, sometimes it’s the little guy. But in every case the consumer loses. The results for consumers are less selection, and less innovation. The more competition there is, the harder each party fights for your hard-earned money. So if you like low low prices (and who doesn’t?) on top of a healthier economy with more jobs you really should care.

Solutions

Many software developers bemoan the state of their respective nations’ patent systems (with America’s USPTO getting its fair share of the love). Some solutions range from abolishing software patents altogether to limiting the amount of money patent trolls can be awarded so as to remove the incentives for trolling in the first place.

While I’m in favor of total abolishment of software patents, I want to introduce a real-world example of a fairly balanced approach.

The Japanese patent system, with it’s stipulation that all inventions (software or not) must somehow overcome an obstacle posed by nature/science, is an interesting approach to patenting from which others could learn. It respects the difference I highlighted earlier between the challenges posed by the real world and the lack of such challenges within the software world. I won’t pretend to be a lawyer and I’m still learning about Japan’s approach but it warrants a read by those interested in patent law.

Another solution, albeit not favorable, might be time itself. China right now is amassing a huge patent portfolio and in time it may be impossible for other nations to make anything without paying licensing fees to Chinese companies. This might force nations like the USA to declare patents as the stiflers to innovation we already know them to be. I’m not advocating doing nothing and just waiting until this happens but it’s one scenario that is currently unfolding and should be on everybody’s radars.

I feel like we are on the cusp of something major here. The internet, for better or for worse, is changing the way we live and work and there are a lot of vestiges of pre-internet life we know we need to cast aside. But a thing like the patent system that was built on the efforts of thousands and which has stood the test of time is not going to roll over willingly. It’s up to people like us to raise voices and take action.

Things we can do right now to protect ourselves from patent trolls and to create change:

• Donate to the EFF and help bust obvious patents and work within the system by citing prior art.
• Join Mike Lee and the Appsterdam project to change US patent law and defang the patent trolls.
• For Developers: Never divulge the complete inner workings of your software. This is patent troll food so don’t feed them.
• For Developers: Prevent patent trolls from using your software. Stipulate it in your EULA by restricting use to a defined set of “legitimate uses” (Again I’m not a lawyer but the logic is patent trolls would have to violate the EULA in order to learn how your software works. Don’t enable them.)
• Buy software from indies and small vendors. They’re not interested in patents, just making software people love.

Consider what could happen if patent trolls win? Once all the ideas in the software world are taken they could move to other industries:

• What would the housing industry look like if “shapes engraved on blueprints” could be patentable? Would we all be living in tents?
• What would the music industry do if “a song rhyming the words ‘girl’ and ‘world’ accompanied by a mellow track” were patentable? No more love songs?
• What would the fashion industry do if its current environment of open copying went away. Would we all be wearing zippered uniforms if “a combination of convex and concave metal joiners called buttons” were patentable?