A Generation of Software Patents Examined

pieterh writes "Boston University's James Bessen has published a landmark study [abstract; full paper available at the link, free of charge] on a generation of software patents. Looking at almost 20 years of software patents, he finds 'that most software firms still do not patent, most software patents are obtained by a few large firms in the software industry or in other industries, and the risk of litigation from software patents continues to increase dramatically. Given these findings, it is hard to conclude that software patents have provided a net social benefit in the software industry.' Not that this surprises anyone actually innovating in software."

Too Expensive

[jellomizer]

Patent process are too expensive for the average Programming shop. As well many of their innovations are not produced in systems for the general public but for their customer. The time it would take to write up the patent application get it approved etc... Could takes days or weeks of work away from working on a project that can bring revenue now.

Big companies that can produce software to a large scale (write once copy a million times) have the ability to deal with Patents, as once the product is released it is making money and will bring in a stream of revenue for a while, giving time to make formal patents and do R&D.

Re:Interesting Points

[Morphine007]

I don't think so.

The argument being made is that securing those rights (at least, using the current methods) doesn't actually promote that progress. So I suppose it could possibly be interpreted that the current system doesn't fulfill the intent of that portion of the constitution. Which might make the current process for obtaining a patent unconstitutional.

However, to claim that it makes patents themselves unconstitutional doesn't seem valid.... but, again, one could draw the conclusion (with a lot more evidence, I'd think) that progress in science and useful arts can't be promoted via granting parties exclusive rights to writings and discoveries at all... which would mean that the portion of the constitution that you quoted would have to be deemed as being sel-conflicting and therefore stricken from the constitution or amended... and while that claim might actually be true, I don't think getting it amended would be easier than revamping the patent system/process

Re:Oh Patents

[mellon]

You know, when I see a 700 million dollar settlement over a garbage patent that was later overturned, and I think about how that would have affected me as a small software developer, what I do *not* think is "all hype and no bite." What I think is "I could lose my house." And so I work for a corporation, so that if/when that corporation gets sued out of existence, I will be on the far side of the firewall, and all I will lose is my job.

People who say this is a small issue that won't effect them either aren't software developers, or are whistling past the graveyard.

Incompatible

[Nethemas the Great]

The patent process takes longer to complete than the lifespan of most software products. Writing software patent applications would pull valuable engineering resources away from where they're needed most, engineering. If everything that "could" be patented "was" patented then no one would be able to write software without infringing upon someone else's patent. This is largely the case already. Most dev houses get away with infringement because they are either not big enough to bother frying and/or the infringement is non-obvious and they fly under the radar. The expense of patenting from authorship, to lawyers, to application, through to approval is prohibitive. Enforcement of patent rights is reserved for those with war chests large enough to field the researchers, lawyers and court costs, etc..

Re:Oh Patents

[Anonymous Coward]

Actually the problem is when you're starting to get big. Being small isn't an issue and being huge isn't an issue it's the in between when they kill you and force you to sell your ideas to someone who can afford to defend against the lawyers. If you explode onto the scene alla Facebook then no worries because there isn't time for the slow moving legal system to get you and by the time they get there you're 100% right you can work something out.

Most firms aren't like Facebook however and experience a more linear growth for years before every become explosively big (if they ever do). These are the guys who patents kill. Innovation doesn't just happen in the wildly explosive successes. It also happens in the slowly grown firms and sometimes that is the foundational work that allows for future explosive successes. Software patents are definitely a deterrent for the normal growth profile of a firm. If you happen to get lucky and not need the linear growth period the good on you but for the rest of us being sued into stagnancy while trying to succeed is painful.

Re:Interesting Points

[robot256]

So? Are you defending a system that relies on a single person's single argument to save the entire society from an unconstitutional law that should never have been passed in the first place? Sounds like there's a bit of a weak link in the chain.