There have been two stories recently that really got my nerve on end. Both of them are dealing with Microsoft. The first is that Microsoft has banded together with a giant group of other technology companies to hopes of bringing to the attention to congress of the problems facing the US patent system, in hopes of fixing this. I think this is a very noble and much needed action on the part of the technology industry as a whole. The second story is Microsoft suing Motorola for their use of the Android Operating System in some of their phones, claiming that they have violated nine of their patents. Does anyone else feel that this is counter productive? This brings me to my next blog post, software patents and why their should not be any.
The idea of a patent system can be used as a great tool to help innovation. Allowing someone with an idea to make money off said idea, without having the resources to build said idea, market it, mass produce it and deliver it to the masses. It creates a 15 year monopoly for the creator to make their millions. This has its own flaws and merits, but in general, I do not have a problem with patents, when they deal with products of substance, things that are tangible. But, once we cross over to the world of technology, most specifically, software, we now enter a world where nothing is new anymore. The problem arises when you take something that does not have any substance, does not have any physical form or shape, a concept, a way of doing something, and claiming that you are the creator of said way of doing something.
To give you an example, allow me to describe something…
A method of changing, adjusting, altering, modifying a border or frame that encases or surrounds a body of information, audio or video.
What I just described are window borders and being able to change the thickness of them. Look at the window that this website is in. Do you see how there is a border around the entire page? With a status bar at the bottom, some buttons on top, well, if you wanted to make that border thicker or thinner, you would have to contact the person who owns the patent to that concept and pay them a royalty. If you wanted to add a transparency to the boarder, you would have to contact them. And all of this is assuming that they are willing to do business with you.
This is not creating innovation, in fact, it is hindering it. If you put one million people in a room and ask them to come up with a way of doing something, the huge majority of them will come up with the same exact way. How can a method of doing something be patentable? In short, it shouldn’t be, but with how the US handles patents, it most certainly is.
This is how the system needs to be fixed. First, methods and concepts can NOT be allowed to be patentable. Second, software can NOT be patentable, in fact, if it is not tangible, it can NOT have a patent. Now, there is something that can be done to retain ownership and that rests on the same thing that artists do to retain ownership, copyrights. How can you copyright software? You copyright the source code. But, this also has some problems, such as, using API’s that are owned by another company. Say, for example, you wrote a piece of software for Windows using the WinAPI from within the VC++ development environment. You are writing code that uses functions and routines that were created by Microsoft to achieve what it is your program does. Microsoft, there for, is entitled to royalties for your creation, either in a one time payment for their devkit or on a yearly license deal like they currently offer with their operating systems. But, they already do charge to use their API’s, you might be saying right about now. And you would be correct. But, this prohibits Microsoft from now owning your creating.
To give you another example of what I am talking about…
I decided to write some music. In my song, I have a part that says “Happy birthday to you.” In order for me to use that, I need to contact the owners of the Happy Birthday song, Mildred J. Hill and Patty Smith Hill. Since they are dead, I need to contact their next of kin or who ever inherited their copyright. Now, just apply the same logic to the software industry.
I know there are going to be some major problems, such as, how can someone claim ownership of “hello World!”? This is where we would use the same idea from the patent system in that if there is known prior art, the copyright would be null and void. The same is already true with the copyright system to a point. If some try to copyright something that is already copyrighted, then you get rejected. I would extend that to, if there is prior art, it becomes public domain.
Now, I know that the patent system has something known as prior art and also an obviousness clause, where by denying a patent is the item in question has already been created or is so obvious that it can’t be done. But, in there is a problem as well, not with the idea or method, but in who checks the patents. It has gotten to the point now that if you throw enough techologic and terminology in the patent, it will get passed, even though it’s something as obvious as changing the width of the border of a window.
The easiest thing to do is to just get rid of software patents all together and I am all for that. However, that is not going to happen. There needs to be a slow progression. Human do not like drastic change. Therefore, I say take baby steps and change software patents to copyright of source code.
This will also do one other thing, remove patent trolls. Now, this makes it so for you to own a copyright to something, means that you actually have source code to prove that you created something. However, this will also create a problem, what about revisions? Well… no system is perfect.