Patents Cast Shadow on Future Development

Software patents, in the idiom of the Star Wars saga, are the Dark Side of the Force. If everyone would forswear their power to destroy, the universe would be a better place—but that happy state is dangerously unstable.

As soon as even one of the defenders of peace and justice falls into the vortex of hatred, the others face the dilemma of how to fight him without ultimately sharing his fate.

Jedi apprentice Bill Gates faced this choice in 1991, when he wrote to his coworkers that, “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”

Perceiving himself surrounded by foes on every side, Gates then made the same tragically logical choice that we’ll no doubt see depicted two months from now in the long-awaited Revenge of the Sith.

The necessary strategy, Gates stated, was “patent exchanges with large companies and patenting as much as we can.” He’s never looked back—and as a matter of fiduciary responsibility to his stockholders, who could condemn him?

Gates accurately identified both the entrepreneurial opportunity and the fundamental flaw of the software patent system when he wrote in that 1991 memo, “In many application categories straighforward [sic] thinking ahead allows you to come up with patentable ideas.”

Click here to read about recent developments in the Eolas vs. Microsoft Web browser patent infringement trial.

It would have been a breach of his duties as head of a public company to ignore that proposition—which the subsequent decade proved amply correct in practice. Between 1991 and 2001, the number of software patents granted each year grew by a factor of four.
(Different sources offer different absolute numbers of “software patents” granted during that time, but all show roughly the same rate of growth.)

Scholars found, though, that the
measurable value of a software patent
appeared to lie more in holding it than in using it: that a software patent portfolio could be shown, statistically, to be more potent as a tool of defense than as a license to offer an innovation in the marketplace without fear of losing one’s competitive edge to imitators.

This inspired Constitutional scholars to point out the qualifying language of Article I, Section 8. That clause authorizes Congress “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

At some point, some black-robed judicial Jedi needed to whip out the light saber of the supreme law of the land and ask, “Where is the promotion of progress?” For without that, there is no foundation
of Congressional power
and therefore no basis in law.

Proponents of over-broad patent protection have long since achieved a major victory, though, by successfully defining the terms of debate to favor their own interests.

If patents were discussed under the general label of “temporary grant of competitive advantage,” the flavor of that discussion would be quite different from that of today’s self-righteous demands for protection of “intellectual property.”

The latter phrase is much more recent in origin than the Constitution’s limited grant of patent and copyright powers. First used in France in 1846, and not introduced into worldwide use until 1967, the
notion of “intellectual property”
seems almost diametrically opposed to the view of Thomas Jefferson that “He who receives an idea from me receives instruction himself without lessening mine; as he who lights his [candle] at mine, receives light without darkening me.”

Gates feared that software patents would bring the industry to a standstill. One might argue that he was right, and that the paralysis he feared has come to pass. When was the last time that the industry saw something as remarkably innovative as the spreadsheet, the WIMP (Window-Icon-Menu-Pointing device) interface, or the hyperlink? All of these emerged in the period before 1990—that is, in the period before the explosion in grants of software patents.

To read about the EU Council’s decision to adopt a controversial IT patenting proposal, click here.

The darkness dismissed by Thomas Jefferson, the Dark Side of the Force of innovation, is arguably upon us now. Both would-be innovators and IT buyers should welcome any initiative to bring the industry out of that shadow.

Based on what’s been disclosed so far, unfortunately, the proposals advanced this week by Microsoft do not go in that bright direction—but only lead toward a somewhat less cluttered (and for Microsoft and other large IT players, more comfortable) darkness.

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