Ok, there is almost a war in the between Apple and Google “fanbois” because Apple used patent suit to block sales of Samsung’s Galaxy Nexus. Before we comment on this, allow me to explain a bit.

What is a patent?

Wikipedia describes it as an intellectual property to which the inventor is granted exclusive rights for a limited period of time.

A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention.

A brief history

The fact that scientists were allowed to record their invention and claim ownership (and exclusive rights) by patenting isn’t new. The Industrial Revolution in the 1800s that spurred changes to nearly every field starting from agriculture to rocket science wouldn’t have happened if the inventors weren’t granted exclusive rights to their inventions. The light bulb was invented in 1850s by 20 over inventors. Thomas Edison, Joseph Swan and others filed several patents. Patent cross licensing or selling of patent rights were common and in fact, GE, the company founded by Edison has a preeminent position in making light bulbs for the initial 20 years till the original patent expired.

The advantages

Patents help record inventions so that it anyone can reproduce it and bring the idea to life. It’s because of this disclosure that, the inventor of the patent gets exclusive rights to use them.

Patents are not perpetual. Every patent, irrespective of their field, expires after a limited time. This ranges from 7 years to 20 years depending on the patent type. After a patent expires, anyone can use it to commercialize the product without licensing it from the original inventor.

GE’s intellectual property back then was the “know-how” on how to make a tungsten filament glow by passing electricity. If patent laws weren’t in place and if inventions cannot be protected why would anyone spend his time to invent something? Without patent laws, Edison (or any sane business man) would have spent his time and energy in obscuring the reverse engineering of light bulb rather than spending it on other interesting inventions. Today, every electrical company, be it Philips or Osram “know” and make light bulbs without licensing the patent (since GE’s exclusive rights have lapsed). All this was possible because GE patented (recorded) the technology and other companies had free access to it after the patent’s exclusive rights expired. GE patented it because they know they would be protected and granted exclusive rights (for a limited period) by the patent office.

Patents in the industrial/mechanical industry are clear an easier to understand. Unfortunately, software patents cannot be explained in a similar way. Software is intangible and that alone makes it special. Software is not a physical entity or apparatus. It’s a function that enables a general-purpose device, like a computer or a mobile phone, to do something. Its closest analogy is the pharmaceuticals industry. Why should an inventor invent a medicine if he cannot make a business out of it?

The patent system allows an inventor/scientist to disclose and record the method of recreating the invention and in exchange grants them exclusive rights to use it. If the pharmaceutical industry were deprived of patents, most of the medical inventions would have been lost with their founders and their family much like ancient Indian medicine or the Traditional Chinese medicine . Today, most of the medical sciences don’t use these medicines because no one recorded (read: patented) the method of how to prepare it. The inventors held their inventions close to themselves and their families that it was lost with them.

Next time, when someone talks about patent, compare it with the pharmaceutical industry and everything will be clear. Yes, the inventor of small pox vaccine, Edward Jenner, or the inventor of polio vaccine, Jonas Salk, did not patent their inventions. They “gifted” their invention to the world without interest in financial gains. But not everyone will be magnanimous like them and that doesn’t automatically mean inventors should be forced to follow them. Moral responsibility cannot be forced onto someone. That is anti-democratic.

A polio vaccination today might sound trivial, but back in 1900s, when polio was crippling thousands, it was sure a serious threat. Today, if someone were to invent a vaccination for cancer, and if there weren’t a patent system to protect him or his company, the method for preparing a cancer vaccine will probably survive the fate of Indian medicines.

Pharmaceutical patents aren’t all that bad. There is compulsory licensing to allow a patent holder to license their patent at a lower price (ridiculously lower price) if the product could be of life saving use in developing countries. This was in fact forced in some countries for medical related patents.

The disadvantages

Every coin has two sides and every patent has an ugly side too. The problem with software patent is that it is too difficult to do a patent search to check if your software infringes a patent. And then there are patent trolls. A patent troll is someone who sues a company for infringement of a patent though they have no future goals of manufacturing the patented invention. You cannot just enforce that a company can enforce their patents only when they manufacture the patented invention. That would cripple credible companies like ARM Holdings. Every coin has two sides and you just have to live with it. Abolishing software patents stating this as a reason is like burning a house to roast a pig.

The opponents of software patents claim that, patents give large multinational companies a near monopolistic edge over competitors, which are unfair. But guess what? The industrial industry went through this. The pharmaceutical industry went through this. In fact, the monopolistic advantage actually favors software startups to patent their inventions without which bigger multi-national software giants would implement nearly every great idea that a startup works on. The startup industry would suffer badly without patents than the converse.

Trivia patents

Another claim from opponents of patents is that a majority of software patents are trivial. Betanews’ Joe Wilcox claims Slide to unlock is trivial and it’s just an extension of how we unlocked doors. If it were so trivial in 2007, why didn’t any other company think about locking/unlocking a computer/mobile device with a swipe gesture?

What was a marvel once becomes trivial today. A steering wheel in a car, or a remote control that’s so ubiquitous was marvels once and patented. When a company seeks a patent for software or a method, it is too difficult to judge if the idea is vague or broad in nature. A number of things that are too common today were a marvel when it was invented. Pull-to-refresh, slide to unlock, multi-touch are just few such. We always had 10 fingers and 10 digits right? We always “multi-touched” real world objects and interacted with them with multiple fingers right? So isn’t multi-touch just an extension of how we interacted with real world?

Tomorrow, if someone patents a 3D interface (like how they do in the movie, Avatar), should the patent office dismiss the patent as “prior art” (You are already interacting with the real world in 3D right)? Inventions are all about connecting the dots. In hindsight, it might be obvious, but it needs an inventor mindset to connect the dots looking forward. Such inventions should be recorded and protected and this is the prime reason why patents exist.

Should software patents be abolished?

Obviously, if software patents were to be abolished, one of the two things would happen. Either no one would be interested in innovating or inventions would be kept secret and hidden that mass commercialization of the patented product becomes extremely challenging to an extent that, the technology dies before hand.

Now, you decide. In my opinion, abolishing software patents would only do more harm than good. Of course, there would be magnanimous inventors in the software industry, much like Edward Jenner or Jonas Salk. That doesn’t necessarily mean software should not be patented and that they should be abolished. Your thoughts might vary. I would love to hear them below or via twitter.


Mugunth

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  • KPM

    Problem is that thoughts should always be free. Concepts are thoughts. Equations are thoughts. Algorithms are thoughts. Physics laws are thoughts. If you begin to allow patenting these things, then you cannot do science anymore. And what’s a software, if not a collection of algorithms? 

    • GS

      Scientific laws, equations, etc. are not patentable precisely because they are physical laws and neither are the equations they are based on. There is no patent for “E = mc^2”.  My understanding is that thoughts are not patentable, but you can copyright your specific expression of that thought.(think “four score and 7 years ago” vs. “87 years ago”) You can’t patent the concept of creating a better mouse trap. You have to have a specific workable idea or a specific method.  In the case of a design patent, you can patent a specific design (think shapes and colors-look and feel). A design patent is relatively easy to “work around” unless you directly copy it. I can tell you investors will not be interested in financing you UNLESS you have a patent. Why would they? Patents are the only protection you have against someone grabbing your idea and using it for their benefit AFTER all of the hard work has been done. I am not a patent attorney, but I have been involved in several patents as the inventor. I can tell you patent law is very complex and tricky. You need a patent attorney if you are involved in this process AND you should be trained in how to properly document your work if you think there is any possibility it may be involved in a patent at some point in the future. BTW – I agree with most points in the above article. There are good points as well as bad points about patents, but they are necessary.  As for myself, if i come up with something truly unique and worth the cost of patenting(probably < 10K), I'll patent it.  I'll copyright all of my commercial code  and all of my commercial art to prevent simple copying. I plan to use design patents for branding, and some product art. Finally, I'll trademark my company name, product names, etc. Copyright and trademarks are simple and much cheaper. I see this as doing my due diligence so I don't get an infringement calls from someone else's attorney for something I could have easily avoided. I'm still working these ideas out for myself, so any comment appreciated. Thanks.