I have, for some truly inexplicable reason, spent a lot of time in the company of IP lawyers in the past month. This includes software industry folks, professors, and even a general counsel for the MPAA. I am not a lawyer, I don’t often wear suits, and I was thrown out of a few colleges in my time, so you can understand, perhaps, why it is unusual for me to be in the company of such affluent and well-educated folks.
If there is one thing that has completely perturbed me through all these meetings, however, it is the observation that these lawyers, who work full time in IP litigation and regulation, universally agree that patent law is perfectly suited to software, provided the software patents are well written.
(Related: Trying to make sense of muddy patent waters)
That “well written” is a change I’ve seen in this community over the past decade—the only change to their positions. Just like the description of Earth in “The Hitchhiker’s Guide to the Galaxy” went from “Harmless” to “Mostly Harmless,” it seems that the legal world considers the problem with software patents, historically, to be that they were not worded correctly. The problem was that they were too broad.
These lawyers with whom I’ve been associating all have the same thought process: Copyright is not for protecting software, but patents are. And this is why everyone has to spend all their time cranking out useless patents like sandbags in a flood.
Now I will fully admit that software patents are getting more restrictive, and the patent office, working with members of the community, has offered up a few ideas to make software patents less offensive and broad. This is a good thing, as in the past we’ve had some truly horrendous software patents issued for utterly mundane things that every developer uses every day.
This is not to say, however, that software patents are restrictive at all. They are now “more restrictive” than before. They are now greater than zero. Just barely. Stupid things are still getting patented in software. Things like hyperlinking a timecode in a video, previewing two Web pages at once, or just making a plain old bookmark.
Patents are completely wrong for protecting software. In our current system, there is only one aspect of patents that I feel is valid for software protections: their length. Ten to 20 years is about right for protecting a piece of software, and copyright law would extend that to something like less than 70 years. But that’s an issue with copyright law and is outside the scope of this rant.