Software patents

Like most programmers, I too hate software patents. But until now, I’ve never had a fine example of how bad they really are (though I’ve written about intellectual property in general before).

But now I just found another granted patent application linked on reddit.

The patent covers… linked lists.

Granted. It’s linked lists with pointers to objects further down the list than the immediate neighbors, but it’s still a linked list.

I’ve first read about linked lists when I was 13 and I read my first book about C. This was 13 years ago – way before that patent application was originally filed.

So seeing a technology in use for at least 13 years being patented as «new invention», I’m asking myself two questions:

  1. How the hell could this patent application even be accepted seeing that it isn’t inventive at all?
  2. Why do companies file trivial patents for which prior art obviously exists and which are thus invalid to begin with?

And based on that I’m asking the world: Why don’t we stop the madness?

But let’s have a look at the above two points. Answering the first one is easy: The people checking these applications have no interest (and no obligation) to check the applied patents. In fact, these «experts» may even be paid per passed patent and thus are totally interested in letting as many patents pass as possible. Personally, I also doubt their technical knowledge in the fields they are reviewing patents in.

Even more so: Most of these applications are formulated in legal-speak which is targeted to be read by lawyers which usually have no clue about IT, whereas the IT people usually don’t understand the texts of the applications.

Patent law (as trademark law) basically allows you to submit anything and it’s the submitters responsibility to make sure that prior art doesn’t exist. The patent offices can’t be hold liable for wrongly issued patents.

And this leads us to question 2: Why submit an obviously invalid patent?

For one, patent applications make the scientific achievement of a company measurable for non-tech people.

Analysts compare the «inventiveness» of companies by comparing the sheer number of granted patents. A company with more granted patents has a better value in the market and it’s only about market-value these days. This is one big motivation for a company to try and have as many patents granted as possible.

The other issue is that once the patent is granted, you can use that (invalid) patent to sue as many competitors as possible. As you have the legally granted patent on your side, the sued party must prove that the patent is invalid. This means a long and very expensive trial with an uncertain outcome – you can never know if the jury/judge in question knows enough about technology to identify the patent as false or if they will just value the legally issued document higher than the possible doubts raised by the sued party.

This makes fighting an invalid patent a very risky adventure which many companies don’t want to invest money in.

So in many (if not most) cases, your invalid patent is as valuable as a valid one if you intend to use it to sue competitors to make them pay royalty fees or hinder them at ever selling a product competing to yours – even though your legal measure is invalid.

One more question to ask: Why does the Free Software community seem so incredibly concerned about software patents while vendors of commercial software usually keep quiet?

It’s all about the provability of infringing upon trivial patents.

Let’s take above linked-list patent: It’s virtually impossible to prove that any piece of compiled software is infringing on this (invalid) patent. In source form though, it’s trivially easy to prove the same thing.

So where this patent serves only one purpose in the closed source world (increased shareholder value due to higher amount of patents granted), it also begins to serve the other purpose (weapon against competitors) in a closed source world.

And. Yes. I’m asserting that Free as well as Non-Free software infringes upon countless of patents. Either willing or unwilling (I guess the former is limited to the non-free community). Just look at the sheer amount of software patents granted! I’m asserting that it’s plain impossible to write software today that doesn’t infringe upon any patent.

Please, stop that software patent nonsense. The current system criminalizes developers and serves no purpose that trademark and intellectual property laws couldn’t solve.

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