The Software Debates: Pros and Cons of Software Patents - Essay Example

? The Software Debates: Pros and Cons of Software Patents Introduction Patenting is a form of copyright that is used to ensure that the creator of a unique invention has full rights over the use and distribution of their invention for a limited period of time. This period of time can often be renewed. Patents were designed for the purpose of encouraging the innovation of products and ideas, in order to provide incentive and ability for ideas to be shared widely and to allow for people to invest in inventions (Henry and Amundsen, 2009). For an article to be able to be patented, it must be considered to be both new and non-obvious as well as being useful or applicable at the level of industry, although the specific criteria vary depending on the country. However, patents are not always used as intended. As ownership of a patent gives the right to determine distribution, and to give or sell the patent to others, patents possess a large potential to be misused for financial gain at the expense of the industry and the inventor. Software development is one contentious area of patent use. The field of software creation has been growing rapidly, and as a consequence is characterized by strong competition (Mann, 2005). Since 1998, when a decision by a United States court granted the ability for business methods and software to be patented, the debate has raged about whether these are truly necessary to protect those who invent the products and procedures, or whether they stifle creativity, impeding invention within the industry (Henry and Amundsen, 2009). While these debates rage, those in the market solely for financial gain quietly take advantage of the chaos acquiring patents from firms and inventors in financial strife, and then using these to generate infringement suits against other companies. Software creation involves building on previous knowledge, resulting in the accusations of many that the ability to patent software has negative effects on the industry, stunting job growth, stifling innovation and causing companies to lose revenue. Arguments for both sides come not only from the business world, but also from academics, scientists and the average consumer. This article analyzes the evidence both for and against the use of software patents, and considers what effect that these have on the industry as well what the best direction is for the future. On the Side of Software Patents There are many reasons why people support the issuance of software patents and these can take the viewpoint of industry growth, or of economics. In direct conflict with the claim that software patents hinder competition and innovation, it has been said that “competition is promoted by the patent system because new innovations and improved products are more likely to be brought to market to challenge the status quo” (Henry and Amundsen, 2009). Without protection, some inventors of software would be too concerned that their work would be stolen and not profit them that they would be hesitant to bring their work to market. That means that the benefits of using the software could never be realized by those whom it would serve. Instead, there would be no advancement. Developers would essentially end up working for free. While, they may be the generous sort who do not mind volunteer contributions, the truth is that such inventors have the right to make a living just like everybody else. If they cannot profit from their own work, then they might as well work in a different field; but where would that leave technological advancement? As it has been acknowledged, “If a new company’s flagship product is sure to be copied by domestic or foreign competition, the incentives to develop- and to invest in- the new product in the first place are significantly reduced” (Henry and Amundsen, 2009). Indeed, having protection for invention is important. Such protections help, and do not hinder, progress. The truth is that many inventors rely on investors for the development of their products. Even though software’s source code is essentially a written product, the hours that go into the development of that code must be compensated for. That is, the inventors need to be financially supported for their personal upkeep while they focus their time on the development of the software instead of pursuing other ways of making money. If a developer cannot decently survive while developing new programming they will be less inclined to pursue these inventions at a cost of world-wide technological advancement. Yet, “no inventor wants to back a small company that is going to have a larger competitor steal its thunder with a copycat product or service without recourse” (Henry and Amundsen, 2009) but without the protection of a patent, that is exactly what may happen. As it has been observed, “The mere existence of a dominant player in a given market can discourage a new company from attempting to bring on inventive technology to market because of the fear that the dominant player will co-opt the invention if the invention is successful” (Henry and Amundsen, 2009). The patent is often the only protection that a small company or individual designer has against larger corporations (Bennett, 2002). Therefore, such patents are the only way that the benefits of such work can be had. In light of the power that large companies have to bully and steal form those less developed that they, some of the software that is now enjoyed may never have been produced at all. These patents bring an overall benefit. As it has been stated, such a patent “only enriches the public. That is in return for the right to exclude others for a period of time, the inventor discloses to the public something that has not been previously known” (Henry and Amundsen, 2009). Even during the time when the others can be excluded, the release of information about a new invention can inspire the development of even more products which employ solution that are not under a patent (Henry and Amundsen, 2009). Yes, strong patents are vital to the continued growth that the software industry has experienced. They are especially important in free market systems, such as that to the US (Beckerman-Rodau, 2009). However, in spite of all the benefits that the patenting of software can produces, there are still those who are strongly opposed to it for a variety of reasons. Arguments that Oppose the Patents There have been numerous reasons given as to why software should not be subject to patenting. Some of the reasoning is concern with advancement, some deal with classification issues; others address dishonest dealings, just to name a few argument types. With the classification arguments, there are those who do not disagree that software should be protected by law, but they disagree that patents are the best way to give that protection. For example, it has been stated that “because source code is expressed in the written form, software may logically be defined as being subject to copyright protection, as a literary work” (Gonzalaz, 2006). Building upon this argument the argument against software patents have been summarized as follows, Critics of US software patent law say that inventors of software are already protected by copyright and trade secret law, and inappropriate patents are approved, eg. ‘obvious’ applications, which may already be well known by programmers or which may be reinvented over and over in the normal course of software development” (Shearer and Vermeer, 1995). They say that many of the software patents granted have been on process that will logically appear during the course of work for many developers. Such patents would hinder progression because with such source codes being patented they must skip over certain steps or go far out of the way to try to create a sufficient alternative. In fact there have been some rather unethical developers who have patented processes in software development that had been previously employed by the industry as a whole. They were not the inventors of this software, just a user who realized that they could profit off of it. The fact that they are not the inventors as proven to be rather difficult to prove or disprove. This leaves the others in the field in a rather tough position. They find that they can no longe4r utilize software coding that they have used for years and may even be subject to litigation and high fees. Agreeably, this is not a very fair occurrence. As it has been stated, “Embarking on a substantial research and development project or blindly introducing new products to the market without considering the possibility of dominating patents can result in a costly infringement suit”(Bennett, 2002). Therefore, every time that a developer would like to begin a project, they first have to do extensive patent research to ensure that they will not be the subject of litigation. Yet, the belief of many has been that “patents…should be denied property-based remedies for infringement only if legitimate countervailing public policy interests outweigh granting traditional property remedies” (Beckerman-Rodau, 2009). This leaves those without a patent and without permission to use the software that they need quite limited in their ability to work towards technological advancement. Those against software patents argue that there are legitimate public interests that should stop such litigation, namely, technological advancement. They consider that their work, should they be allowed to use the code under patent would sever to benefit society as a whole and therefore they should not be held to such patent laws and such patents should not be granted. For example, a college composition student reported on how software patents have even plagued their field of study and tells how composition students have to worry about infringement when seeking to control their digital writing environments (Vee, 2010). In other words, these students cannot feel free to be as creative as they otherwise would. These software patents are keeping them from doing so in the course of their studies thereby causing a hindrance to their education. This is a big change from the large corporations that the patents seek to protect developers from. These students are not in it for the profits, they just want the freedom to explore the application and express the inspiration that their class has lead them to. In addition, it has been said that innovation is hindered by software patents because all innovation in the software industry builds upon that which is already in existence (Klint, 2003). With the majority of the software being under patent, the foundation on which new innovators can build is slowly disappearing. As it stands, they will have to wait until the patents expire on the newly designed software, an event which takes years to arrive. By having to wait years for such a time to come around, the advancement of technology in these areas is reduced in speed significantly. An alternative to this wait would be to search for an alternative design which will not be covered under the patent, such designs often have to be extremely elaborate and complicated(Klint, 2003). This becomes a focus of innovation and research on its own which can take up substantial time. It is possible that by the time they finally do come up with something that will not be an infringement, the patent will have expires, making such pursuits futile. The argument against software patents have been summarized with the following statements, (a) The patenting process slows down dissemination of new findings, since they have to be kept secret while the claim is being investigated. (b) Many patents are described in such global terms that they are hard to reproduce by others. (c) Obvious, but patented solutions are ruled out and resources are needed to find more elaborate, and patented solutions (that may even be inferior) (Klint, 2003). In addition to the given complications with software patents, the problem is further compounded with the existents of patent trolls. Patent trolls are people or even companies who do nothing to further the industry but seek to make a quick and hefty profit of software patents. How patent trolls work has been described as follows, After acquiring the patent(s), the parent troll accuses the target company of infringing its patent and offers a license. If the targeted company does not agree to the license, the target company is promptly sued for infringement, spurring high-risk, high-costly litigation (Luman, III and Dodson, 2006). This is an awful misuse of the patent system. No doubt, these patent trolls seek out companies from which they feel they can get the most money. No company wants to be sued and incur such high costs as that of litigation. However paying these trolls is not a good idea either. Once the patent trolls find out that a company will pay, the company becomes a target for even more patent trolls. All these trolls care about is getting money. They do nothing to promote innovation or contribute to it (Luman III, and Dodson, 2006). As it has been reported, “Patent trolls simply acquire patents, typically from struggling companies, cash-strapped inventors, or bankruptcy proceedings, with the sole intent of forcing an unsuspecting company, usually with deep pockets, to ink a license and pay a fee for the –use’ of the patented technology (Luman III and Dodson, 2006). The Compromise It is clear that such actions serve as no more than a disadvantage to the software industry. Such complaints against patents as the existence of the patent troll are valid. These people seek out their victims and abuse patent law for their own gain. However, patent trolls can and do exist in any industry. In fact many of the complaints against the patenting of software are also applicable to patents in all other fields. It is not only through source codes that technological innovation can experience growth. There is nothing unique about these complaints, but rather they could be complaints on the existence of patents at all. The truth is that patents serve to “encourage inventors to disclose their ideas and offer the public free use of such new inventions after a reasonable period of time” (Henry and Amundsen, 2009). As the economy becomes more knowledge-based in developed countries it is important that such developments be encouraged. No doubt, many of those opposed to software patents would soon switch sides if they were the ones holding the patents, or if it was their coding that was being protected. A designer should not be forced to disclose their intellectual property to their competitors. They worked hard, presumably, for the advancements that they made and the others should be inspired to work just as hard on their on contributions. There are some areas in which it is clear that some adjustment needs to be made. For one thing, there should be a difference made on scholarly usage versus commercial or for-profit usage. The can be put in place a clause that allows for academic purposes but denies the ability to reproduce the code for profit. Competitors should not be given a free ride and be allowed to help themselves to the hard earned developments of those who compete against them. As well, smaller companies and individuals should have the right to compete in a market that has been dominated by well financed, large competitors. They have just as much right as anyone to benefit from the work that they do. In consideration of all the arguments, the one that says patents do away with competition is found to be unsubstantiated. Everyone has just as much right to develop software as anybody else. The existence of patents should serve to promote competition instead. Companies should be seeking to create programming of their own and with the existence of patents for software; they will be challenged to produce it at a faster rate than the ones that they are competing against to ensure that they can get the patent first. Another point that must be brought out about patents is that they are not easy to get, except for those patent trolls who buy up the patents of everyone else. A patent is expensive to obtain and the process can be very long. While this may serve as another reason for some to say that their ought not be patents on software, the fact of the matter is that the person or company that went to such great lengths to develop a program and then incur the expense of patenting what they designed should be entitled to the benefits that such labor brings. Since they worked so hard at it and accomplished their goals, they have every right to control what happens with the product. It is clear that software patents must be here to stay if the world is to continue to advance technologically. Without such protections inventors will not be quite as motivated to make new discoveries. Dissolution of the patent system would follow with a marked reduction in the speed of advancement. This effect is the very opposite of what those against patents want or envision occurring. In their world of all free software, everyone will be free to utilize advance and customize software at their own whim, but at the same time, without any true reward, who would want to? There of course will be some that will take full advantage of the situation and make great new discoveries. But they do not represent the majority. Today, college students go into the field of IT with visions and hopes of the great careers that they will have. All of this could be done away with at the dissolution of software patents. The students will begin to feel like all of the money that they spent of education in such a field will have been wasted. As it has been said, the “patent does not represent a taking from the public, but rather a contribution of something new” (Henry and Amundsen, 2009). If not for the fair competition generated by software patents, the word would not have been able to enjoy products such as those created by Microsoft, for example. Instead of being millionaires and billionaires, the workers at this software giant would be working for free and possibility even struggling to survive while they take upon themselves the noble task of developing software and advancing the technological discoveries of the human race. At that point, they just may stop and ask themselves ‘What’s the point?’ Without software patents, developers will turn from being the smart workers that they are to great humanitarians. They will have a place in society right along with volunteer firefighters and environmentalists who work just because they care. That might be all very well but, when we get right down to it, it is impractical and overly idealistic. The truth is that society needs advancement and people need paying jobs. They need to be supported while they work towards the goals of the whole in regards to technology. Patents for software should not be considered any less important of functional than any other patent. Patents help society by “providing incentives and protections for inventions and investments in the software and business method arenas is becoming more important to the United States with the shift towards a knowledge-based economy” (Henry and Amundsen, 2009). While they might be considered an inconvenience to some, patents are vital insurance policies for many. They people that would be against them must have simply failed to see all of the benefits that the patent brings to the software industry. Also, it should be noted that patents are not mandatory for software. Those that would be willing to design source code for free already do so and give it away to any who desires it. Freeware can be found on various websites and downloaded. That is to say that not all software requires a licensing fee for usage. Let it also be pointed out that many patented software programs are available for usage, and that the user need only pay a fee. Such a cost may simply be calculated into the cost of a research project. If technological advancement is all that opponents of software patents are concerned about, they could no doubt, work out a deal with the patent holder of the software that they wish to improve upon or study, allowing the patent holder to reap some benefit in exchange for letting the software be used. And, even should they fail to get permission to used the software, according to the United States’ Supreme Court “Patent holders don’t have the automatic right to stop their competitors’ business even if they prevail in court” (Kintisch, 2006). This fact makes it clear that those who are against software patents may be simply concerned with their own financial pursuits. The fact of the matter is that software patents do not have to hinder progress or keep a person from using it to further advance technology. A reconsideration of some of the patent system designs may be in order, but patents on software is something that should be here to stay. References Beckerman-Rodau, A. (2009) Patents are Property: A Fundamental but Important Concept. Journal of Business and Technology. Bennett, D (2002) The Power of Patents and Their Strategic Use. Business North Carolina. Gonzalez, A. (2006). The Software Patent Debate. Journal of Intellectual Property Law and Practice. Henry, S. and Amundsen, E. (2009) The Arguments for Patents for Business Models and Software- Implemented Inventions. Grolaw. Kintisch, E. (2006) Supreme Court Limits Power of Patents. ScienceNOW Daily News. Klint, P. (2003) Against Software Patents. Luman, III, J. and Dodson, C. (2006) No Longer a Myth, the Emergence of the Patent Troll: Stifling Innovation, Increasing Litigation, and Extorting Billions. Intellectual Property & Technology Law Journal 18(5). Mann, R. (2005) Do Patents Facilitate Financing in the Software Industry? Texas Law Review 83. Shearer, J. and Vermeer, A. (1995) Software Patents and the Internet: Lessons From the CompuServe/Unisys Graphics Interchange Format. Journal of Universal Computer Science 1(5) 312-319 Vee, A. (2010) Carving up the Commons: How Software patents Are Impacting Our Digital Composition Environments. Computers and Composition 27:179-192. Read More