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As the current software patents stand, is there a need for software patents in regards to software development, and what benefits do they bring to the software developer in general?

My question is founded on the general limitations I find when trying to create a software that is thought to benefit present and future users, but is created with difficulty as to avoid legal problems.

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Hey Luis, as it's currently worded, your question(s) seems speculative and arbitrary. Any way you can reword it so the community can offer a definitive, fact-based answer? –  samthebrand Sep 21 '12 at 0:00
    
Hi Sam, thanks for the hint. Is this correct? –  Luis Alvarado Sep 21 '12 at 1:31
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My opinion, at least, is that software patents are a burden to all software. Because the speed of the patent office and the speed of development are very different, patents become a tool for companies to make money. For example, things like the patenting of methods in the Java API, are pretty crazy. If I make a Java method with the same signature as one that's patented, I don't think that's a valid reason to be able to sue. Software has use for copyright and copyleft, but not patents. –  Linuxios Sep 21 '12 at 2:20
    
@Linuxios - why don't you post this as an answer. –  bPratik Sep 21 '12 at 13:15
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@kinkfisher: Even so, my opinion still stands that software patents are a very bad idea that are stifling innovation. Patents are supposed to help and protect innovation. Instead, when we patent things like a rounded rectangle (really Apple?) thousands of dollars that could have gone into R&D go into stupid legal battles that only destroy. –  Linuxios Feb 1 '13 at 22:33

2 Answers 2

up vote 3 down vote accepted

If you are a lone software developer, you probably don't need patent rights in order to operate in your business. In your daily life, the patent won't help in any way. And you may even believe that software patents should be eliminated. However, since we live in a world where software is largely patentable, there are some reasons why you might want to file for patent rights.

Lets say that you have a good idea for an interesting solution that you reasonably believe would be really useful and valuable in the marketplace. Getting a patent on that solution will be something like a stock-option for you. If it turns out that the market goes in other directions then you have lost your option price (the cost of getting a patent). If, on the other hand, the market goes in your direction then the patent may become much more valuable. Further, as a lone software developer, you qualify for 50% reduction of most patent fees and in 2013 may qualify for a 75% reduction.

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A patent system does have drawbacks, there's no doubt. They're monopolies, so a firm which has a strong patent doesn't feel the same degree of competitive pressure that drives efficiency and benefits the consumer. Again, depending on their strength, they can stifle research and development by other competitors. This is nothing new; Watt's patents for steam engines are considered to have stopped anyone else bothering to develop their own steam power for the life of his main patents. As a large piece of software may rely on so many smaller elements, avoiding a thicket of patents can be difficult.

But by providing a reward, a clear shot at the market without competitors, it gives an incentive to come up with and develop products. If as soon as you had developed and released your product, competitors copy you and compete, you might be less inclined to create innovations. It's hard to see how the pharmaceutical industry could function, short of nationalisation or public subsidy, without the patent system. Development costs are high, and copying easy.

You've got to balance these pros and cons to decide whether patents benefit society (and I think there is the fairness to an individual inventor to consider, as well).

If you're a lone inventor with a good idea, how are you going to capitalise on this, without the possibility of a patent? As soon as the idea is published, every other Tom Dick and Apple can make their own version and outcompete you. You might get work out of it, since to start with you're a bit of an expert on it, and some bragging rights, but probably not the big bucks. The same problem exists, though not as acutely, for smaller firms. If you're short on resources, others can benefit as much as you from your idea. Copyright isn't really helpful, since you can usually sidestep copyright by extracting the idea and re-execute it.

Whether there's a need for it, whether the pros outweigh the cons, to be honest, I don't know, and I'm not sure anyone else does. For a long time, it was thought that software was unpatentable before the EPO, whilst the US was more generous. Gradually, the EPO - how shall I put this - came to understand that their legislation actually allowing a lot of software to be patented. I don't think there's any empirical evidence that Europe's software industry benefited from the absence of patents in the 1970s, or frankly, that it's benefited much from the increasing availability of patents.

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The story of Watt's patents holding up steam is a myth, one that I believe was largely spread by Boldrin & Levine's "Against Intellectual Monopoly" book. Here is a paper [PDF!] comprehensively busting that myth: terry.uga.edu/~jlturner/StrongSteamApril2009.pdf. Here's another calling out Boldrin & Levine for further fabricating history when the previous paper was bought to their attention: terry.uga.edu/~jlturner/WattAgainAug2009.pdf –  kinkfisher Feb 1 '13 at 20:11
    
Thanks kinkfisher, those are very interesting papers. They also highlight a beneficial by-product of patents; they encourage other inventors to come up with different devices to avoid an earlier patent, which are sometimes superior to the invention they were trying to avoid. –  PNH Feb 4 '13 at 3:10

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