Dangers of software patents to tech start-ups

Last month, the IT sector in New Zealand celebrated the passing of a bill that removes the patentability of software, perceived to be a major barrier to software-led innovation, from the Patents Bill.

In fact, many countries around the world either already forbid software from being patented, or are in the process of doing so. But, isn’t a patent supposed to help innovation, so why would any government forbid software from being patented in their country?

A patent gives an inventor the monopoly on the use of their idea for an extended period of time. In return, the inventor has to disclose the secret behind the invention to the public. The system is designed to induce the sharing of idea and knowledge, something which would have been kept secret if there were no such system in place.

The designers of the patent system believed that the sharing of knowledge behind inventions would lead to more invention, which would in turn lead to general benefits to society.

For mechanical inventions – the original target of the patent system – electrical inventions and other types of physical invention, the patent system has worked out as planned. The system created healthy competition, leading to many inventions such as light bulbs, telephones, televisions and transistors.

For such physical inventions, there might be a single idea, or maybe a few ideas, that gets patented, because the idea that gets patented usually has to do with how the components of the system work together. For physical systems, there are not that many components, hence a few patentable ideas.

The implications for inventors who want to pursue further innovation is that they might have to overcome just a few patents that belong to others, either by creating an alternative new design or by licensing from the patent’s owner. This might be difficult in some cases, but it is still possible.

For software, on the other hand, usually there are millions of components. Even a block of source code can be counted as a component.

Software landmine

If software were to be patentable in a country, there would be numerous software patents serving as a landmine for anyone attempting to build a software system. They may have to overcome thousands of patents in order to develop any software worthy of use, which is almost impossible.

In many countries which allow software patenting, such as the US, the system creates a predatory species called patent trolls, who secure the rights for patents merely to sue, for a big sum of money, companies that want to create a software system.

Big companies accumulate patents, not to use them for innovation, but to protect themselves in patent disputes by counter-suing the other parties. A case in point is Google’s acquisition of Motorola and its patents to protect itself from lawsuits by Apple and Microsoft, among others.

The software patent obviously has no benefit whatsoever for society, innovation and tech start-ups.

What about Thailand? Luckily, we are among the countries that do not allow software patents, except for special circumstances. This is one of a few things we have done right. Hopefully, no one is clueless enough to change that.

Posted on The Nation