Random Acts of Architecture

The recent victory of Apple over Samsung has brought the arguments for and against software patents to the forefront once again. With many of the big technology companies engaged in patent litigation, many ask whether patent law is a distraction that stifles competition. Many technical luminaries, blogs and articles are openly anti-patent so should software developers be actively filing patents in organizations willing do so?

Patents can be beneficial for the developer. Some companies offer financial rewards for filing patents and researching whether something is truly novel, required for filing a patent, may reveal other solutions and techniques. However, patents’ biggest benefit is demonstrable innovation. A filed patent has been reviewed by the organization’s internal process and the patent office. This is rarely perfect but far more review than many other achievements.

That said, filing patents can distract developers from working on products and can be expensive for the organization. Similarly, if a developer files patents on a product then moves to a different organization working on similar products, the developer must carefully avoid infringing those patents at the new organization.

Some, such as the Electronic Frontier Foundation (https://www.eff.org/patent), argue that filing software patents endorses or exacerbates the negatives of patents. Many prefer the open source movement ideals where information and software should be available to be extended and used by many. Much of modern computing builds on concepts and algorithms that, if originally patented, may have stalled or prevented much of what IT takes for granted.

However, is this being disingenuous? Could these concepts and algorithms have developed despite patents? Consider the case of VisiCalc, the first spreadsheet. It was not patented, allowing Lotus 1-2-3, Microsoft Excel and other competitors to copy, extend and eventually surpass it. If it had been patented, would Lotus, Microsoft and others created an even better solution to the original problem than a spreadsheet? (as per Russ Krajec’s blog post at http://www.krajec.com/blog/what-if-visicalc-was-patented)

There are many more arguments for or against patents. However, even if all the anti-software patent arguments were proved and pro-software patent arguments disproved, for example, there is still no guarantee the software patent system would be dismantled immediately or at all. Legal and political systems move slowly at best.

Indeed, the technical or ideological pro- and anti-software patent arguments are all academic. Organizations file patents to protect their intellectual property (IP) in a world where patent litigation is increasingly common and IP is becoming organizations’ greatest asset.  It is a strategic business decision.

If an organization chooses to file patents, a software developer refusing to file patents makes about as much sense as a golfer refusing to use a putter. The golfer may lobby for a rule change banning putters but, in the meantime, the golfer is only inflating his or her handicap. This is not a “two wrongs make a right” scenario. If the organization is successful, it will inspire copy cats and litigation from its competition. Depending on the industry and product, filing patents may be pragmatic.

Software developers often see themselves only as potential victims of software patents, the expense and difficulty of filing them and the misplaced assertion that developers do not producing anything novel fuelling circular logic. If the organization is willing to bear the costs of patent management, why not patent it? There are undoubtedly smarter people out there that can solve the problem more effectively if needed. The organization can always choose not to assert the patent over open source or use it defensively, too.

Some argue that nothing in software development is new and most work is merely reinvention but saying that modern software developers are all less capable, intelligent and imaginative than their forebears is clearly false. This is not to say that developers produce new things all the time. Similarly, while many patents are obvious in retrospect, it is also much easier to judge when their ramifications are in everyday use.

What developers can do is ensure filed patents cover only products the organization intends to produce. Much of the consternation around patents from developers revolves around “non-practicing entities” (NPEs or “trolls” as they are derogatorily known), where the focus is on licensing existing patents and not using them to produce products. Research NPEs are the exception, despite Ars Technica’s Fox News-worthy rant (http://arstechnica.com/tech-policy/2012/04/how-the-aussie-government-invented-wifi-and-sued-its-way-to-430-million/).

Irrespective of whether an organization chooses to file patents, developers should keep easily accessible evidence of design documents and design discussions, such as E-mails and written notes. Even if an organization chooses not to file patents or the organization is not building anything novel, the organization may still be the victim of a patent lawsuit and demonstrable prior art can refute or diminish a patent’s novelty.

Software developers are very good at arguing things on technical merits. Unfortunately, the software patent issue has never been a technical or even ideological issue. These are merely rationalizations. This is as economic and political issue, and most software developers are not economists or politicians. Some protection for inventions is required and patents are the current, imperfect implementation of this. Until we come up a better system, software developers are only hurting themselves by not using all the rules of the game to their advantage.