Strong opinions, weakly held

Stephen O’Grady on software patents

He lists a lot of good reasons to be against software patents, but here’s his favorite:

I am against software patents because it is not reasonable to expect that the current patent system, nor even one designed to improve or replace it, will ever be able to accurately determine what might be considered legitimately patentable from the overwhelming volume of innovations in software. Even the most trivial of software applications involves hundreds, potentially thousands of design decisions which might be considered by those aggressively seeking patents as potentially protectable inventions. If even the most basic elements of these are patentable, as they are currently, the patent system will be fundamentally unable to scale to meet that demand. As it is today.

The argument that designing a functional patent system for software is infeasible is interesting and correct.

Here’s another reason he doesn’t list that I think should give patent advocates pause. If you look at all of the software being written, is there any evidence that companies and projects that apply for patents are creating any more value than the companies and projects that aren’t? And if they are not, what is the point of the patent system?


  1. That is an incredibly good point Rafe!

  2. The point about software requiring piles of innovations even for simple products is the best argument. There is no shortage of innovation, there is a surfeit, and what is state of the art this month might be obsolete by the next. This was never the case for mechanical inventions whose primacy might last for decades or even centuries. And remember that the goal of the patent system was also to encourage disclosure and eventual public-domaining of inventions (especially as many of them might be in manufacturing and therefore invisible to the outside world). But in software there is no shortage of disclosure; reverse-engineering is nearly universal, UI innovations can be reimplemented in minutes, and there are very few true “trade secrets” in the sense that they exist for manufacturing.

    Patents, in software, discourage experimentation and innovation by making entire areas of design off-limits (or potentially off-limits). Multi-touch? Better not go near that…

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