Etherplex

I engaged in a conversation on Google+ recently that related to a recent episode of This American Life entitled "When Patents Attack".  The episode focused on the damage that software patents and patent trolls are inflicting on the software industry.  I penned a response to that episode, but as it was on Google+ in a limited circle, I thought I would reproduce it here in public.  What follows is a simple cut and paste of the response I wrote on G+.

Finally got around to listening to this. IV's position, along with the other patent holders pursuing litigation, boils down to "We've found a way to extract money from industry players." That's it. There's nothing deeper than that in anything they say. To the hardcore capitalist that drinks the Ayn Rand kool-aid, the ability to extract money means there must be value.

The problem with that reasoning is that patents are a government-granted monopoly that is fundamentally unnatural (that's why the government has to grant the monopoly on something that can't really be monopolized: ideas). To a more traditional conservative that views the actions of all large organizations with suspicion (whether it be the government or a company), the grant of such an unnatural monopoly must be justified, and indeed, the founding fathers did justify the monopoly powers they gave the government, including copyright and patents (trademarks are something of a different beast). That justification was very clear: the purpose of the monopoly is to promote a public body of creativity and invention.

The missing piece in all of this, then, is any evidence at all that these patents for upgrading software over the internet, making online purchases, purchasing software through an mobile application and literally millions of others would not have been created and shared with the public if the government didn't intervene. No one, in any discussion of this topic I have ever heard or read, has made the argument that we are technologically ahead because of software patents. Even if someone were to make that assertion, I would have to ask them to cite a case in which a piece of technology that is critical to the way we live was created because of that system.

Since controlled tests aren't possible, we must resort to the bailiwick of the social scientist: statistics. So, I pose a simple question: since the patent office became more friendly to allowing software patents, have we seen a marked increase in innovation in the software industry?

Let's plot a graph of notable advances in computer science versus the number of software patents granted. It would be a good exercise, but I think I can guess the result. The sad truth is, most companies would be inventing just as much regardless of whether their code were patentable, simply because:
1) no software company today relies on exercising patents as a primary source of income, and
2) code is already protected by copyright, so even if the code is made publicly available, the "no derivative works" clause provides substantial protection.

Perhaps the most telling fact in all of this is that the people inventing in the software world, the computer scientists and software engineers, almost universally hate software patents. This was pointed out in the story, and has been my experience as a programmer.

At a more fundamental level, the entire debacle stems from the misguided belief that there are "super men" than invent things and deserve huge compensation for doing so. That way of thinking is deeply misguided: we all rely heavily on the inventions that precede our work to make progress. That is, the system for granting monopolies on these ideas seems to assume that inventors live in a vacuum as an isolated individual in a lab somewhere, not as part of an active, connected global community of practitioners. In the software world, we find that if a university wants to stay even remotely current, they find themselves presented students with courses filled with nothing but patented concepts. Is this really the intent? If we try to monetize every instance of the use of an idea, we increase the friction involved in the creative process — a process that, in my experience, is already fraught with difficulty. It makes everything cost more, and, as usual, lines the pockets of the lawyers and those in government that must shepherd us through the exercise of determining "damages" when someone uses an idea the government has dictated is owned by someone. All this is ignoring the fact the the legal system is hideously biased in favor of the big players at the direct expense of the smaller companies that have the most incentive to innovate (since they want to innovate to differentiate themselves from the current major players).

It's nice to see This American Life addressing the issue, but making the lay citizen understand the long term costs associated with this behavior is folly. Sadly, the lawyers, the government, the patent trolls and the big companies (which have already invested in vast portfolios of defensive patents) don't have a vested interest in seeing the system change, only the poor, often young, innovators do. And so, we find ourselves discouraging the very thing we sought to foster. Folly, indeed.