In Europe the fight for software patents have always been kept at bay. This week though in Germany one of the European strongholds broke down. A German court declared patents on software legal! Although my country does not deal in this kind of behavior yet it seems to be going that way…

This new found legality of software patents gives an open invitation to everyone who wanted to patent the way basic programming stuff to basic interaction practices. HTC and Apple had a recent clash that was based on those kinds of ideas.

Why do we fight this kind of patenting? Why is it so bad? Or is it!?

What is worthy of a patent?

If you are an Apple fanboy… look away for a minute…

How does an egocentric company like Apple come up with the idea to patent this: Unlocking a device by performing gestures on an unlock image. This is way to basic of a design pattern to be allowed to ever has passed as a patent! If I would invent a device to help user put in data into a computer, I would call this the Button! I would patent this device as: A downward pressuring gesture on an object to give input into a device. I would only ask 0.01 dollar cent per use of that patent. Let me get back on that!

So, is this a problem of how complex a patent should be? I think it is. If you would try to patent a device that could be used to move object in a rolling motion (lets call it a wheel), then the patent bureau would probably ask you If your head was on the correct way. The problem here seems to be that a technique like a wheel is well understood by anyone and seen as common knowledge. No patent will even be allowed to apply to those kinds of ideas. But as technology becomes more complex and is put in a different context the normally so distinct border becomes really vague… The patent by Apple is nothing more then an digital and touch screen interpretation of the sliding lock people have on their white fence used since the dark ages…

Problem: who will determine if a patent is valid or just plain bullshit?

Are patents that bad?

Not all patents are bad! The post-it glue patent is one of those patents! That glue is an invention that goes beyond anything regular. If you would invent a sliding fence lock with an addition that made it better I would grant it a patent. That is the whole idea of patents. A patent should reward you for inventing something unique and innovative. Even if that would be expanding on an existing idea like a wheel!

Patents are actually good for any new invention. In a sense software development is just like inventing stuff. So in a good way patents are protecting inventors from loosing their money right from the starting blocks. It is not strange that only a couple of ideas really make it to success or even just make enough money to pay the start-up money back. So it is good that when an inventor has something truly new and innovative they can profit from it. This helps investing in bright people with bright ideas to do what they do best.

Another good thing is that patents have an expiration date. What is good about that? Well… that means that the inventor has time to earn money from the idea. But after a while the idea would be available to others that could run with the idea and maybe improve on it. This creates a healthier competitive situation for the market and allows for inventive ideas to become common ideas that could be used for new innovations.

All in all… patents are not such a bad idea if you look at it that way…

Why am I making so much noise about it?

In software patents there are some crucial mechanisms that do not seem to work in this new segment of technology. There are a couple of reasons why software patents do not fit software as they would do for many other inventions:

  • Speed: The speed at which software is developer is far greater then any other type of invention. Distribution and production is a lot easier then regular shipping and production of physical goods. Everything is fast paced, profits and all. The expiration should have been kept in line with that, It didn’t! It takes way to long for a software patent to expire and create a healthy market environment. If we would have had this since the beginning we would still not be able to use a folder structured system by now.
  • Natural comparison: The sliding fence lock is I think a fitting example that was “copied” by Apple to create a new patent. This was just applying new technology to an old idea. Comparing filing cabinets to the folder structure and files in a computer is the same thing. Taking an existing idea and just applying new technology for the idea. Not enhancing the idea, just applying it. These kinds of ideas should never become new patents!
  • Relatively new field: IT is relatively new field as it comes to all technology fields. It is a new segment that is still growing rapidly because of a few major discoveries in the late 19th and early 20th century. Helping that to grow to a level it is now has always been the lack of a lot of patents. IT has always had a more open nature. The beauty of this is that new open basic ideas engage other new ideas to be built upon that. Building even more enhancements to be build upon. Some very specific ideas that have patents do not hinder this growth. But because the sector is so new a lot basic technologies are still being created.

With that said I do not believe that we can go without software patent forever. People need to earn money because that is what makes the world go round. Are we ready for software patents? problem is… what about all those unclaimed idea? is Apple now showing us how vulnerable this is?

just some food for thought…

ow… and I almost forgot… I just cost myself over $1 in patent costs… How about all those other people typing, clicking….. wait a minute….. YOU OWE ME MONEY!

hmmm….. what if I would patent the way you patent!?

  1. #1 by unwesen on 2010/05/22 - 12:14

    See, I actually thought about the same topic myself, but came up with a different way of looking at it.

    If you try to compare mechanical engineering and software engineering, then mechanical engineering is vastly more patent-riddled than the other. Think about the tons of patents involving various screw drives, and you’ll notice that quite literally the nuts and bolts of mechanical engineering are all patented.

    It may be inconvenient in that field, but it’s not that big a problem, though. The reason for that is that a screw with a particular drive is known to the engineer to have a particular cost. That cost includes the manufacturer’s material and production costs, profit margin, but also any patent costs they might have had.

    As a mechanical engineer, most of your work consists of fitting together totally custom made parts that in no way have enough genericity to them to be patentable with totally commoditized parts that have patent costs “built in”. In other words, patents rarely concern you.

    Applying that some model to software engineering doesn’t really work, because nobody sells buttons for you to use in your software at a cent price per button used. Part of that is because buttons are built into the platform you’re developing on.

    (Notable exceptions to this sort of way of looking at software patents are e.g. buying a Qt license, where you do pay for a set of functionality, and should be able to expect that the vendor covers all patent costs.)

    But the reality of software engineering is that most things you build are almost entirely custom made. In terms of mechanical engineering, every simple piece of software can better be compared to building space shuttles than toasters. And that’s, incidentally, why space shuttles are so expensive: pretty much everything is custom build, down to how stuff gets attached to other stuff.

    So the simple fact that in software you always have to customize pre-existing ideas makes it impractical to sell buttons, progress bars, etc. at $.01 a pop.

    But there’s a far bigger issue, and that is that in software engineering, you simply do not use up materials in the same fashion as you do with mechanical engineering. Since you don’t use up 15 of the 200 pack of buttons you bought at a DIY shop, and that in each copy of the software you sell, simply adding patent costs to the materials you use becomes infeasible.

    I’d bet if you approached any car manufacturer and asked them to come up with a list of how many screws, nuts, bolts and other bits and pieces they used, and include the supplier, calculate the patent cost for them, and send out money to the patent owners, they’d laugh at you. They’d likely tell you that exercise would ruin them and make their efforts unprofitable.

    But that’s what software engineers are asked to do when it comes to software patents.

    Don’t get me wrong… in a sense, I have nothing against software patents. I wouldn’t mind living in a world where they were commonplace, if dealing with them was feasible. But applying the mechanical engineering model of doing so to software engineering doesn’t work.

    • #2 by Joost Elfering on 2010/05/22 - 12:37

      nice thoughts Jens.

      It is really unpractical as well… you ask a screw manufacturer how many of a specific type they produce you can get a straight answer. but in software. If you have one you potentially have an infinite number of copies right at your fingertips.

      And everything is custom. So it’s not like you run to the shop to buy some progress bars or some buttons. That’s why I think a patent like Apples unlock mechanism is silly. Even more silly if you look at the basic idea of it and compare it to existing real world examples that have been there for years and years.

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