Software Patents and Open-Source

I am slightly sanguine about the possibility that reality and rationality might actually drive the Supreme Court to invalidate software patents, which they might eventually do in the In re Bilski case. I hope the open-source community appreciates the importance of this.

I was working at Apple as they were looking at making a certain technology open source. There was quite a bit of evidence that making this technology available via open-source licenses would make it much more widely usable and it would get maintenance and TLC that Apple had no business case to provide, but it got nixed from higher-ups.

It turns out that one of the best uses of a patented software technology is to seal it in a black box and say nothing. It is a secret landmine that one can use against others. This will not help the software get used, but that is not the point. It does not actually matter whether it is a good patent or not. Lots of bad patents get approved by the Patent Office and the cost of defending against the holder of a bad patent is the same as the cost of defending against the holder of a patent that actually does involve innovation.

Software companies use these patents like playing cards. One big company goes to another and tries to strong-arm some licensing money out of them. The target company pulls out its cards and says, "Sue us for X, Y, and Z and we will sue you for A, B and C." Eventually their lawyers sit down, cards are shown, somebody decides to pay something or not, they write a cross-licensing agreement and both companies go home happy.

A side benefit of this is that small companies that might be developing innovative software cannot afford the ante and they are locked out. The big patent holders, IBM, Apple, Microsoft, Sony at al are happy and they shut down those annoying whipper-snappers who want to do something better.

This state of affairs is particularly saddening when one looks at why we have patents. Ask 100 people "what is the purpose of a patent?" and 99 will say that they protect the author of some discovery or creative work. In reality the temporary monopoly provided to a copyright or patent holder is the means of fulfilling the purpose. It is not the purpose itself. Looking at the Constitution, one sees this power assigned to Congress in Article 1, Section 8 of the US 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;

Does our current system of patents, especially software patents, "promote the progress of science and the useful arts?" The answer is obvious. It does not. Is it obvious enough for the Supreme Court to go against the wishes of the "intellectual property nomenklatura" of this country, with their fictitious billions of dollars on their balance sheets? Maybe. We'll see. Another interesting question is this. On the day after all those patents are invalidated, what will the stock market do? It will be interesting to see....