Policy: We Must Abolish (or Reform) the Software Patent System

(Our Broken Software Patent System, Part 3 of 3)

We must abolish the software patent system.

Yeah, you heard me.  Scrap it.  Get rid of the whole thing.

I've already explained in utter detail why the system is very, very broken, and why there's no hope that it will ever be fixed.  There are only two options: a sweeping change in software patent legislation written by multiple parties working in concert with software industry leaders to fix an abomination that shouldn't exist; ...or just save time and money by killing the whole software patent system.

Ending the System
It wouldn't be bad to get rid of software patents.  Europe does not allow software patents*, and they have a bustling software industry.

There would be many benefits to dismantling the software patent system.  First, there would no longer be any software patent trolls.  Companies that abuse the legal system to prey on small software businesses would cease to exist.  Secondly, software engineers would probably produce more free and open source software (FOSS) since they would no longer have to worry about securing software patents that could be used in defense.  This would create the conditions for a new software startup boom.  Without the fear of patent lawsuits from patent trolls or even large legit software companies, and given new FOSS tools, starting a small software company would be a less risky concept.  As for larger software companies, abolishing software patents would make these companies more agile, since they wouldn't have to waste resources on expensive legal fights.  Society would get more cool tech stuff released more often.  All of this increased innovation would probably have a positive effect on the American economy.

Let's not forget that there are already intellectual property protections for software.  Copyright will be the primary protection for software.  No one can steal a software engineer's or software company's actual code.  There are also trade secrets.   Just like the Coca-Cola Company keeps their Coke recipe a trade secret, a software company can keep its compression algorithm secret if it so chooses.  And lastly, there's the profit motive and the notoriety of releasing first.  In this fast-paced industry, whoever comes out with a cool new concept first will profit from having a working product in stores while other companies try to work out the kinks in their labs.

I join Richard Stallman and the Free Software Foundation in calling to end software patents in the US and elsewhere.  However, if we cannot end the software patent system, we should reform it at the very least.

Reforming the System
The list of people that want to just reform the software patent system is longer than the end-patents-list (Jeff Bezos of Amazon and Tim O'Reilly of O'Reilly Media, the Electronic Frontier Foundation (EFF), Nilay Patel of The Verge, David Drummond of Google, most of the US House of Representatives, etc.) so reform might be an easier goal.

I've co-opted some people's ideas on reform and come up with a few ideas of my own.  My list of reforms that would fix the software patent system are as follows:

1. Software patents must be specific.
   No more language about "the machine", "network web sites", "memory bank portions" and other archaic language unused since the days of vacuum tubes for the sole purpose of obfuscation.  These things are "the computer", "websites", and maybe "areas in memory" (?) respectively.  (Though, really, hardware usually has no place in a software patent.  Usually, hardware is only mentioned as part of a patent to lend credence to the notion that it is an "invention.")  Requiring clear and current language without extraneous implementation details will make patent application, processing, and litigation go a lot faster and easier.
2. Software patents must be used.
   If you are the owner of the software patent, you must be using the invention to actually create a product, or you must license the patent at a reasonable price.  Waiting for someone to violate your unused patent so you can extort them is unethical and it should be illegal.
3. Software patents should have a short lifespan.
   Twenty years is too long to hold a monopoly on a technology in the software industry.  Bezos and O'Reilly suggested 3-5 years, which is much more reasonable.  The EFF also said a max of 5 years.
4. The US Patent and Trademark Office must remove bad patents from their database.
   The Office must go through their existing patent database and get rid of duplicate patents and other invalid.  The USPTO is mostly to blame for this fiasco and they should fix this.  Otherwise, how can inventors tell what inventions to avoid using and applying for?

With reforms such as these, the purpose of software patents would be restored.  Software inventions would be protected from stealing, but it would be easy for inventors to tell what patents existed and whether an idea was new or not.  The title of most innovative tech company would no longer depend on who has the biggest legal team.  Patent trolls would have a hard time existing.  And when the occasional invalid patent was granted, the owner would only have an illegal advantage for a short period of time.

In summation, we Americans must reform software patents--or better yet, getting rid of them altogether.  We can fix the problems in the industry before any more damage is caused.  When we do, society will reap the benefits.

* The European Patent Office has allowed some patents involving software, but "programs for computers" have not been regarded as patentable inventions since 1973.