This week in a startling move Apple was granted a preliminary injunction on the sale of the Samsung Galaxy Nexus, the Google reference phone. The preliminary injunction was granted due to a claim of patent infringement on Samsungs part regarding several features but in particular:
“2. A means of searching multiple databases and sources for data.”
This follows an injunction earlier this week granted to Apple over the sale of the Galaxy Tab 10.1 due to design similarities. To my mind at this point there are only two kinds of software patent lawsuits:
1) Annoyingly bad lawsuits
2) Dangerously bad lawsuits
The problem is the current form of software patents and the lawsuits that follow, flies in the face of the entire purpose of the patent system in the first place.
The History of Patents
The patent system has a dual utility, the primary being the dissemination of knowledge, and the secondary being the limited protection of profit for the creator. Understanding this is the key to understanding why software patents are being used incorrectly. The goal of patents was to spread innovation by allowing people to build off of others ideas. The idea being you shouldn’t have to reinvent the wheel in order to create the bicycle. In order to encourage this idea of sharing information there had to be some incentive to actually show how things worked. The incentive was exclusivity of sale for a limited time. Another crucial aspect of the patent system is your exclusivity only extended to the specific way your invention worked as opposed to the goal it achieved. For example you could have a patent on turning on a light with the push of a button, but that didn’t prevent someone from making a light that turns on with a switch.
Software Doesn’t Need a Patent to Protect Intellectual Property
There is a reason that the formula for coke does not have a patent. Coke is notoriously secretive of the precise formula for coke partially because secret recipes are cool, but mostly because if the formula was known it would at best have limited protection from copies. The same is true for KFC’s special recipe. The same is also true for software code. Neither Microsoft nor Apple releases the full code of their operating systems. This is to protect them from people copying what they do and creating a competing product. What Amazon did with Android to create the Kindle Fire is impossible (without significant reverse engineering) with iOS because the source for iOS is closed while the source for Android is open.
Patents Are For The Implementation Not The Idea
As I mentioned before the purpose of patents was to allow inventors to build off of others ideas and not have to reinvent the wheel every time. If however you did in fact reinvent the wheel in a new way say using wood instead of stone, the person who had the patent on the stone wheel couldn’t stop you from making your wooden wheel. This is not the case in software patents. Patents are granted for the vaguest possible ideas so now not only could you not reinvent the wheel in a new way, you can’t invent the horse drawn carriage because it uses wheels.
Software Patents Causes More Harm Than Good
Software patents have created a new menace the patent troll. Patent trolls are companies that don’t actually make any products from the patents they hold. These “non-practicing entities”, as they are called, make their money from suing companies that have made a profit from real products that the troll believes infringe on their patents for things they never intended to make. A recent study has calculated that patent trolls cost the industry 29 b-b-b-billion dollars a year in just legal fees and licensing. This isn’t a chilling effect on innovation; this is an epochal ice age. The problem is running afoul of someone’s patent is inevitable! Another study revealed that it is mathematically impossible to avoid infringing on a software patent:
we estimate it would take at least 2,000,000 patent attorneys, working full time, to consider whether all these software-producing firms have infringed any of the software patents issued in a typical year. Even if firms wanted to hire that many attorneys, they couldn’t; there are only 40,000 registered patent attorneys and agents in the United States.
Software patents are an obscene perversion of the patent system and need to be either dramatically reformed or abolished full stop. Companies are wasting billions in resources that could be used to make better products and have a true competition of ideas. There is no excuse to maintain the status quo.