The patent balance

Marco Arment just posted a well-written argument against software patents, and while I am, as I said before, sympathetic to the notion that software patents should never have been allowed, I don’t think he’s taking the right approach and I can’t let his argument go by without comment. Duty calls.

Marco’s argument is perfectly pitched to make his case, especially to an audience of young programmers. It’s very persuasive writing unless you see how he’s stacking the deck.

The gist of his reasoning is in this passage:

Patents have a clear goal, as Dr. Drang quoted from the U.S. Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Excluding copyright (“Writings”), which I believe is a net positive, this implies that:

  • Science would not advance sufficiently without inventors being able to legally prohibit others from copying or using their discoveries.
  • The act of invention, not production or bringing to market, is where we want to place the most value as a society.
  • The value we place on the act of invention is higher than the cost imposed on the rest of society by not being able to use the invention freely.

How could anyone disagree with this? Patents retard the advance of science, put inventors on a pedestal, and impose a high cost on the rest of society. Clearly, it’s time to break out the torches and pitchforks!

But before we do, let’s look at his three bullet points a bit more carefully.

First, patent law isn’t about science, it’s about invention, so patents aren’t going to restrain the advance of science. In addition, the prohibition that patents provide are limited in two ways:

  1. They’re limited in scope. Each patent has a claims section, and it is only the items covered in the claims section that an inventor is given dominion over.
  2. They’re limited in time. Currently that time is 20 years, which is, admittedly, an awfully long time in software-years, but it isn’t a permanent prohibition.

So by calling it science instead of invention and omitting the limitations, Marco’s made things sound much worse than they are—this is good polemic but not a good explanation of the patent system.

My biggest beef is with his second bullet point. Patent law does not put inventors at the head of society, it simply gives them some protection. Society already rewards those who bring products to market because they’re the ones who collect the money. Without patent protection, inventors would be cut out entirely because they’re not in the normal revenue stream. The purpose of patent law is to ensure that inventors get some reward for their efforts.

My disagreement with the third point is basically the same as my disagreement with the first. Society is able to use the invention freely, just not until the inventor has a chance to make some money off it.

In short, Article I, Section 8 doesn’t imply any of ideas Marco imputes to it. The purpose of intellectual property law is to strike a balance between the needs of creators and the needs of society as a whole. It will always be imperfect because these needs cannot be balanced exactly and because different people will view the balance differently.1 But just because it’s imperfect doesn’t mean it should be abolished.

None of the foregoing should be construed as enthusiastic, or even tepid, thumbs-up for the current software patent system.

Once upon a time, software wasn’t patentable. The thinking was that algorithms were basically math and you can’t patent math. Eventually there was a recognition that software does things, just like a traditional mechanical device. It seemed fundamentally wrong to allow patents on mechanical devices but not on software devices. Many programmers back then wanted software patents and worked hard to get them.

My sense is that most programmers would now argue against software patents, just as Marco has. We’re 30 years into the software patent system and seeing its downsides: the patent term is way too long for software; too many patents have been issued; and patent extortion is rewarded instead of punished. What’s gone wrong?

What’s gone wrong is that changes in the software landscape have turned the system I described above on its head. Software development requires essentially zero capital investment. With the rise of the personal computer and the Internet, software distribution also requires essentially zero capital investment. Programmers—the producers, the people who bring things to market—can now be the little guys. And through the accumulation of patent portfolios, “inventors” who don’t do any inventing at all can be the big guys.

Marco is right when he says patent law, when applied to software, is based on assumptions about what should be rather than what is. This, I think, is the crux of the software patent problem. Things are out of whack because we’ve taken a system designed for the Industrial Revolution and applied it to a post-industrial realm.2

The solution, I think, is a patent system that recognizes that software and hardware are not the same. The patent balance has always been based on economics—what rules and incentives are needed to get inventors to create the devices that improve society? Because the economics of software are different from that of hardware, the rules and incentives should be different, too. This is not unprecedented. All the various intellectual property laws have been tuned to their specific needs. Splitting software out from hardware would just be a recognition of its unique needs.

I said at the top that I’m sympathetic to the idea that software patents should never have been allowed. But whether they should have been allowed or not, they are a fact of life today and that’s not going to change. If you think the patent system is out of balance, you should work to put it back in balance, not chase after some fantasy of turning back the clock.

  1. Marco, for all his dislike of patent law, gives a pass to copyright law, even though it does the same thing for a much longer term. He sees the copyright balance differently because he has no stake in it. 

  2. My family saw Thor over the weekend, and realm has worked its way into my everyday vocabulary. Verily.