Bilski and The Dirty Little Secret of Software Patents

Software patents don't drive innovation or customer value, open source does

There is a lot of discussion this week after the US Supreme Court issued a ruling on the Bilksi lawsuit. As VentureBeat reports, the ruling will have very little impact on the way people do business around patents.

Having worked in software for 25 years, I’ve been involved in lots of discussions about patenting software at companies where I’ve worked. The dirty little secret that most people in software companies know is that software patents rarely (if ever) involve something so unique and so innovative that it is deserving of legal protection.

Instead most patents involve ideas that any decent software designer or developer could “invent” with just a little bit of effort. In my opinion, having a patent for something that took 15 minutes or even 15 hours to design makes a joke out of the patent system. For many companies, patents just become a land grab to create a competitive advantage. For others, including many companies I’ve worked at, they become a defensive strategy to protect against competitors who might assert a patent against you.

It all seems so ridiculous. Software companies create new patents to protect against other patents and the cycle continues. Along the way, developers spend hours talking to patent attorneys trying to define the perfect combination of features and functions solely to enable them to get a patent. And none of this adds any value for customers or consumers.

Open source brings a completely opposite approach to innovation. By sharing not only ideas, but code as well, they enable others to take innovative software and improve on it, and use it to build even more innovation. That adds more value to customers and our industry than patents ever will.

It seems that if lawmakers, policymakers or judges were able to see the view from people in this process, they would realize quickly that patents do not contribute to innovation, but actually detract from innovation. Maybe then, we could change the rules of the game – if not to eliminate software patents, then at least to sharply curtail them.

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