Patently Ridiculous

An interesting story from the New York Times, in which the writer compares the Microsoft of 16 years ago with the Microsoft of today.

In 1991, Bill Gates said “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… some large company will patent some obvious thing [and use the patent to] take as much of our profits as they want.”

That was then, but this is now. Microsoft now holds 6000+ patents and is not afraid to use them to bludgeon the competition.

I make a living writing software, and I have done for over twenty years. In that time I have never felt the need to use a software patent, neither have I ever advised an employer or client to do so.

Why? Because it is wrong. Software is copyrightable. It is not patentable. Software is a creation – not an invention. There are perhaps, what look like a few notable exceptions – encryption algorithms, for instance – but it is the mechanism, not the implementation, that is patentable. So even when software is patentable, it isn’t.

Since inventions are patentable and “works” are copyrightable, it follows that nothing can be both. Perhaps one way to discourage this would be to revoke the copyright when the patent runs out. I suspect that Microsoft et al would change their minds if faced with that particular dilemma…

But then I think that all source code should be escrowed and released to the public domain after about ten years. Not because I subscribe to some kind of neo-communist ideology – I don’t – but because the ability to “build a better mousetrap” is the heart of innovation – and you can’t do that when some megacorp has patented and copyrighted the design of the mousetrap.

In a supreme twist of irony, the New York Times OP-Ed piece was written by one Tim B Lee. For those watching in black-and-white, that would be Tim Berners-Lee, the man who invented hyperlinks and fathered the world-wide web. Where do you think we would be today if he had patented the idea?

Patents are the enemy of innovation. Some might disagree; ask who is paying their salary.

Now Reading: The Tipping Point, by Malcolm Gladwell

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