Software Patents are Totally an Awesome Idea, For Sure 01-06-2011

A woman walks into the patent office and is granted a patent for "Song chorus with catchy hook."

A man walks into the patent office and is granted a patent for "Documentary-style film which uses camera-produced footage and interviews with relevant parties."

A woman walks into the patent office and is granted a patent for "Plot device wherein a law enforcement official finds himself framed as a scapegoat for government corruption and must prove his innocence while avoiding capture and arrest."

A man walks into the patent office and is granted a patent for "Blog title using sarcasm to express displeasure."

All of these scenarios seem completely absurd and surreal on their face, yes? They couldn't possibly happen in this country, right? And yet, this is pretty much what happens with software patents every single day!

Just like the Patriot Act, software patents are a jokingly poor idea. Actually, no: it would be funny if it were not so downright preposterous. Patents are intended to be an incentive for innovation and creation; through the possibility of being granted an effective monopoly on a new invention, potential creators are enticed to continue to innovate and develop. Without patents, so the argument goes, there would simply be no reason to try to make amazing new inventions because there would be no guarantee of reaping the fruits of one's labor, and thus these new innovations would never see their way into the public domain, the realm of the common good. There would be no profit motive, a crux of the Free Market, which we all know is perfect in every way and should be left unchecked from now until eternity.

Patents are supposed to be granted only for inventions which are novel and non-obvious and which have a utility or application. Yet, particularly in software, a ridiculous volume of patents are granted which are neither novel nor non-obvious. Prior art is trampled over regularly because the patent system has seemingly no ability to determine that, in fact, untold amounts of patents are being granted repeatedly with only slight changes in wording. And because it is so astoundingly dense, it has no ability to determine whether something is obvious or not because, well, none of it is obvious to the system. Those who actually make software and take part in the community can see bogus patents from miles away in an instant. But, thanks to the broken system, obvious, already-seen, inane patents get approved.

I am sure that the patent approval process is hard (though in many cases, like the just-linked Microsoft patent, simply Googling for the technology in question would have found ample evidence of prior art) and I know that software is still young as a field, but the results of software patents have been startlingly poor thus far.

You know that something is inherently wrong when the phrase "patent troll" has made it into the public lexicon with extreme ease and frequency. And you know that something is awry when the prevailing sense is that it is better to just pay patent trolls off and go about your business. Large corporations have the legal armies and unlimited resources required to fight off troll claims. But the patent trolls pose such a threat to individuals, from mom-and-pop developers to Alzheimer's researchers, that they are bullied and chilled into giving up their work altogether or paying up a hefty ransom...

TO SOME ONE WHO HAS SHOWN ZERO INTEREST IN ACTUALLY USING THE PATENT RIGHTS TO DO WHAT THEY WERE MEANT TO ENCOURAGE IN THE FIRST PLACE: INNOVATE AND CREATE. They are instead using patent portfolios for the exact opposite purpose and, surprise, succeeding quite mightily.

And, sadly, the people who should be leading the charge toward fixing the system are just charlatan enablers. Science and technology are bewildering to seemingly everyone in the government, which includes such minds as those who are afraid to admit whether or not they think that the Theory of Evolution is scientifically factual (HINT: they don't and it is). Software is like witchcraft voodoo magic to the people who have the most direct attack vector on software patent law and thus they have no insight. They don't recognize that all of this outrage in the tech community is well-founded and not just the ramblings of nerds and geeks. Shouldn't it be a sign that a vast majority of the people making innovative new software are diametrically opposed to software patents?

Part of the problem is that politicians are self-interested and only invested in short-term issues which guarantee votes from their constituents in the next election. And the public-at-large is uninterested in software patents because software is just as mysterious to them as it is to the average Congressperson. Thus, this issue does not generate outrage and discontent for citizenry, so it does not make the headlines on Fox News and MSNBC, so it does not reach the offices of the Powers that Be nor does it stand to be an issue that they can exploit for personal gain, so nothing gets done and we all suffer.

I mean, goodness, the USPTO in 2010 even lowered the obviousness standard because, apparently, patent quality was too high for their personal taste. Seriously, was that a practical joke? How do things look now, USPTO?

My overall opinion is that when a system is broken beyond repair, it is best to tear it down and re-evaluate the situation. The patent system, as applied to software, is fundamentally unsound and the cracks in its foundation are becoming more apparent with each passing day. Seemingly each new sunrise brings the approval of a bogus, ridiculous patent that is immediately debunked and ripped to shreds by those who actually make software and/or the filing of a brand new extortionist patent troll lawsuit aimed at destroying someone's work or siphoning off someone's success for pure self-gain. We see this down in the trenches daily and nothing is being done. No real change is being affected.

Then again, now that a software patent has been formally reduced down to a mathematic formula (which is possible with all software processes) and mathematics have been previously deemed un-patentable, maybe someone with the requisite power will recognize that something should be done. Or, maybe, they will just cover their ears and eyes and ignore facts and evidence.

We seem particularly adept at ignorance most of the time anyway.