Why software patents are evil

Yahoo's action against Facebook reminds us why most open source developers hate software patents -- and what one community has done about them

Mark Cuban is no fool. A tech billionaire, the no-nonsense owner of the Dallas Mavericks is just the sort of person you'd expect to value software patents. So the title of his blog post this Tuesday, "I hope Yahoo crushes Facebook in its patent suit," may not look out of place to you.

But wait -- it turns out this is a fake-out. He hates software patents and wants Yahoo to cause so much trouble that Congress has no choice but to finally engage in patent reform:

Rather than originating in Congress, it's going to take a consumer uprising to cause change. What better way to create a consumer uprising than to financially cripple and possibly put out of business the largest social network on the planet?

[ Simon Phipps points out the legal advantages -- and exceptions -- of OIN's latest move in "Linux gets a bigger shield against patent attacks." | InfoWorld's Robert X. Cringely smells the fading Web portal's desperation in "Yahoo vs. Facebook: Let patent insanity reign." | Stay up to date and subscribe to InfoWorld's Open Source newsletter. ]

Patents may work in other industries, where the cost of innovation is so high that a temporary, state-sanctioned monopoly provides just enough time to gain a return on the investment. But that investment-return ratio has a completely different value for software. It turns out that software patents have little bearing on encouraging innovation. In an article posted on Slate, Timothy Lee puts it like this:

Copyright infringement occurs only when someone deliberately copies someone else's work. But a programmer can infringe someone else's patent by accident, simply by creating a product with similar features.

While some business leaders bluster about how a company they are attacking has "stolen their patented ideas," in software that is almost never the case. Programming is all about solving problems, and since necessity is the mother of invention, most programmers invent things from scratch every day, without any need to use other people's patent filings to do so. That's just as well, because as Lee goes on to say:

Given that a handful of lines of code can lead to patent infringement, the amount of legal research required to compare every line of a computer program against every active software patent is astronomical.

No programmer I've ever met refers to software patents, for two reasons. First, they aren't written for programmers to learn from -- they're written for patent lawyers to sue against. You'll find software patent filings contain no sample code and few technical descriptions. When I worked at IBM, I asked a patent lawyer at the company what was needed to file a patent. I was told "a rough idea -- we can fill in the details for you -- and then all the ways you can think of by which we could tell if someone else is using that idea."

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