Software patents: How bad they are, and how big companies love them

This post on software patents and copyrights and everything else in between is a means of letting off steam caused by reading news that Apple is taking ideas from commercial softwares being actively sold and trying to get patents for those ideas posing as concepts of their own. Yes: Ideas and concepts Apple has not conceived themselves but would like to legally call their own and demand, if and whenever they like, a royalty from anyone building on those ideas — or, in the worst case scenario, sever competition. Patents are considered evil and bad, and there are good reasons why.

Apple is not the only company who is doing it. Most big companies do it; have done it in the past. It has almost become a trend: big companies openly filching ideas from commercial softwares not their own, and attempting to patent those ideas as their own. For example, here we see Microsoft finally being granted a patent on “Page Up” and “Page Down” keystrokes. As another example, Microsoft owns a patent on the “Tree-View” mode we have come to love in many file-system applications. These are merely examples, and Microsoft and Apple are not the only big companies indulging in such practices.

In the software industry, being able to get a patent for an idea you have conceived that hits of really well is bad enough already that you have big companies going out patenting popular concepts in softwares that aren’t theirs to begin with. Besides giving that big company who did not think of a famous idea but now owns it an unfair advantage to play evil, it severely cripples the ability of other companies in general and developers in particular to be able to build upon that idea in order to build and sell better, bigger products, especially when such an idea is as basic and simple in nature as a window layout — most or all products need to need to build upon that.

One has to understand what a patent (software patent, in particular, in this context) is in order to fully grasp the extent to which they are a threat to, for example and in particular, the software industry. Let’s go over it with a simplistic analogy. I think of a brilliant idea, such as, say, tabbed-window browsing. No-one at this point has thought of it yet. I go out and roll-over a browser which features an implementation of my tabbed-window browsing idea. As set out in the US Copyright Law (and in Copyright Laws elsewhere mostly), any implementation or creation, the moment it is materialised into any tangible form, automatically becomes the property of the individual implementing or creating, and as such, that individual automatically gets the copyrights for it. Now, copyright and patent are two different things. At this point, I have the copyright to my implementation of my idea of tabbed-window browsing — the browser, or at least if we only concentrate on the implementation of the idea, the code that implements the tabbed-window browsing functionality is under my copyright. My idea, however, is not.

Ideas can not be copyrighted. They can be patented though. And that is where patents come in. You cannot copyright an idea, because, according to the US Copyright Law, for anything to be copyrightable, it has to be a work, in a form tangible, of an idea. An idea is not something tangible. That is all fine, but how are patents a threat to the software industry? Let’s imagine, further, that you, a big company with a not-so-great browser product, go out of the way and patent the tabbed-window browsing idea that I thought of. You get the patent, and now you legally own the idea. And, then, you plan to play dirty. Since my browser with the tabbed-window browsing support is gaining popularity at a breath-taking speed, which is more than hurting your browser market penetration, you charge me for patent infringement. Yes. I, with the implementation of the idea of tabbed-window browsing which you now legally own, am infringing on something that you have a patent for. Forget about the moral implications of your getting a patent for what you did not think of, I am committing a crime. And you can drag me to court for it. Easily. At this point, there are two things you can force upon me to choose from to do: Either force all my customers to pay me a royalty fee which in turn I pay back to you, and continue to let my browser remain in business or at least existence, thereby continually paying you a royalty fee for as long as the browser lives; or, force me to pull back my product, and end its life. What is worse perhaps is that that there is barely much of anything I can do about it.

Now, do you see how bad patents are? Fortunately, unlike how copyright applies automatically the moment you create a tangible form of your work, the process to acquire patents is a long and tedious one, which requires filing a patent application at the patent office, waiting for the patent office to approve and grant the patent, and everything in between. However, the brutal fact that you do not have to prove that you are the one in fact who actually thought of an idea in order to get a patent is, most unfortunately, not a requirement for you to get a patent for that idea. That is how big companies manage to run away with patents for ideas that belong to others. Couple that with the threat patents cause I described earlier, and you may see how deadly patents can become if brandished by evil companies to leverage ill-gotten advantages.

As an individual, and not least a software developer, tester, etc, there is little you can do about this, but it helps to know. Let’s turn up a notch for no software patents.