Software Patent Discrimination

The patent system in general has always been run by patent advocates, for patent advocates and their clients. Any system that lets those who benefit set the rules is going to work against the public interest. But in software, patents also directly discriminate against the real innovators - the small, agile, collaborative teams that built the Internet.

The discrimination against real innovators happens because the patent system grants patents far too easily, and without proper justification. There has never been a single economic study that showed that patents benefitted the software sector. Today, studies show the opposite.

The expansion of patents into software has happened purely on dogmatic reasons. By forcing a policy of "one size fits all", the patent system discriminates against fast-moving agile sectors like software, to favour slow-moving ones like pharmaceutics. Twenty-year exclusive privileges in a sector where full product life cycles are measured in a few years is insane.

The granting of over-broad monopolies on ideas locks out innovation and competition, in a sector that lives and dies by competition. Handicapping the US software market with patents does not create wealth. It discriminates against US software innovators, in favour of those in countries with more sane patent policies.

Smaller software businesses, who cannot afford the cost and above all, the risks of patents, are heavily punished by the patent system. And hardly any small software businesses buy software patents - a recent study by a patent advocate actually showed that 80% of VC-funded software startups don't buy a single patent within four years of funding. And startups without VC funding, which make the majority…? It would be surprising if even 5% of small software firms bought a single patent.

Lastly, the exclusive privilege that software patents give their owners discriminates against open research by blocking disclosure and the free flow of ideas and knowledge. It is ironic that patents are sometimes sold as "rewarding disclosure" when in fact they heavily discourage it. Not only are software patents indecipherable to anyone except a patent expert, but the pressure to acquire patents makes engineers much less likely to disclose their ideas to others.

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