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Are software patents dead?

I’m not a legal expert, so I’m mainly just gathering information, but it sure looks to me like the patent regime as it relates to software is in for fundamental change thanks to a ruling in the U.S. Court of Appeals for the Federal Circuit on Thursday. Links:

For what it’s worth, I don’t think that the patent regime as it exists today provides an incentive for individual inventors to create inventions. Most of the patent activity, especially in the world of software patents, is sponsored by large organizations who have the infrastructure and budget to try to patent everything they can. I’ve worked at a number of small companies and we’ve never been able to patent much of anything. We’re too busy coding. On the other hand, my friends at large companies are constantly being encouraged to file patents on everything they work on.

The original idea behind patents is that they’d protect the little guy from having his ideas copied by a company with deeper pockets, but I don’t think it’s worked out that way.

The patent system is complicated, and complicated systems favor people with the resources to game the system. It’s why rich people get more tax breaks than the rest of us — they have more to lose and can spend more to exploit loopholes in the tax system. It’s why people in World of Warcraft who can play 12 hours a day do better those that can play 1 hour a day. They have the resources (time) to invest in exploiting every inefficiency they can find. And it’s why companies like IBM, Microsoft, and Apple are always accumulating boatloads of patents.

If this ruling is as broad as some are arguing, it clears the field for startups who want to go out and build a product without the fear that they’ve stepped on one of the thousands of nebulous patents that have already been filed. And that’s to say nothing about the advantages for open source software, where the types of patents that seem to have been eliminated by this ruling have been an actual barrier to adoption.

1 Comment

  1. Groklaw also has been covering the case, with the most recent being:

    http://www.groklaw.net/article.php?story=20081030150903555

    If you can put up with PJ’s occasionally (pro-GPL) preachy commentary, it’s probably the most thorough read you’ll get.

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