Journal Journal: How would you change software patents? (Rejected)
One of the most hotly debated topics on Slashdot appears to be that of patent system reform, specifically pertaining to software. It's clear that most readers of this site dislike the patent system as it currently stands, and they demand improvements upon a system that is generally felt to be a stifling environment for software designers. What bothers me is that the patent system has existed for a very long time, and has had quite positive effects on our society, despite what appear to be monopolistic effects in the short term. Thus, I am in favor of minor changes and optimizations, but I'm very skeptical about all-out reform. My question -- and I recognize the potential flames it and my views on it could start -- is this: how does Slashdot propose we improve the patent system?
The whole idea behind the patent system is to provide the disclosure of ideas in order to benefit the long term interests of the general public. The idea behind this concept is that without disclosure, inventors have very little incentive to disclose the workings of their inventions, because anyone could just duplicate it. It would be like Coca-Cola losing its secret recipe (which is not patented -- it's a tradesecret, which is a topic for another day). So, to encourage disclosure, the system must provide some incentive to the inventor for that disclosure, which in the United States' system means 20 years of rights and protections for the owner of the patent from the filing date. In exchange for those protections, the public gets a detailed explanation to how the invention works, with the intent that anyone can use that information to create better inventions. The catch on those improvements is the inventor of the improvements must deal with the inventor of the original technology before he can use the improved design.
The biggest debate in the realm of software is that many people consider the privileges granted to inventors as a chokehold on the innovative capacity of the software industry. People see the software industry as a place that evolves so quickly that the patent system is hampering development and innovation, because it seems that anyone can come along, patent some generic idea, and use it against a real working system that provides utility to a real userbase. Although this does happen on occassion, I argue it is the exception rather than the rule. The current system requires that an idea be both novel and non-obvious to those in the field. This means that the idea be new, useful, and that it didn't exist before. It also requires that the idea be implemented. Someone cannot just patent an idea without that idea being realized. This seems like a fairly complete and well-grounded system, and the only potential flaws I see here are in ensuring the requirements are met. The base of the system seems sound.
An important thing to realize about the patent system is that it's not designed to help the inventor or the customer, but rather the long term interests of the general public. Consider the example of Polaroid. Back in the 1970s, Polaroid created the instant picture. With the patent they received on this technology, they completely locked out the photo industry from making similar instant picture devices, and essentially gave themselves a monopoly. They made huge profits on this technology for the full term of the patent, and then the patent ran out, and they busted. Why? Because the industry moved on without them. Locking the industry out of the instant picture market encouraged the industry to come up with their own, completely different system, the CCD camera. Would they have invented the digital camera without Polaroid's lockout? Probably. But it probably wouldn't have happened so quickly. One can argue that patent system created an artificial monopoly here to the detriment of society, but I would argue that it just encouraged the industry to invent something better. To compete with Polaroid, they had to come up with a better solution that was completely unrelated to Polaroid's solution, and they did it. Good job, photography industry.
The photography industry is not what's at issue here but I have to wonder what the difference is between it and the software industry that justifies patent reform for software. Does the software industry evolve faster than any other industry in such a way that it should be set apart? Something to consider is that any software written on a general-purpose platform can be written in hardware on a special-purpose platform. If software and hardware suddenly get treated differently, then it might make more sense for companies to start producing their inventions in hardware. Hardware takes longer to develop and is less flexible, but if you get more patent protection from hardware, then might it not make sense to start developing in hardware? Software specific laws don't really make sense in this light, and I feel that it overcomplicates an already complex system.
I believe the patent system is doing very well at its job even in the software industry. The only point of contention I can see is that perhaps some trivial ideas are getting patented, ideas that people can argue don't satisfy the requirements of a patent, specifically that an idea be non-obvious to those skilled in the field at the time of the invention. The experts in the field argue that even in the case that obvious patents exist, those can be defeated in court. I know this is of no help to the small inventors being sued by huge companies, and subsequently I think guidelines should be better enforced when granting patents, but I still don't see how software-specific rules are justified. It may seem in the short term that patents on software are harming the industry, but I argue that that is the way technology has progressed in the past century, and that there is no reason for software to be any different. I believe as it did with the photography industry, the patent system will contribute to the greater good for the software industry in general. Where do you stand?
