"Many, many patentable ideas may be buried in the source code of a software application, but only a very few, if any, should be reasonably patented from a business sense."

Have a look at

http://webshop.ffii.org/

Count the number of patents (no it's not only 20, just look how many patents cover video formats and streaming), and come back more informed.

If you want to be taken seriously, you have to give some examples, such as:
"Windows XP" is only covered by X patents or that kind of facts.

I challenge you to come with a meaningful example of software and the number of patents covering it.

The whole point of the post is that there are checks and balances in the system that are (conveniently) overlooked by the anti-software advocates. From a business perspective, there is a very big disincentive to patent every patentable idea in a software application. Namely, a patent would make the trade secrets known to the public and competitors while being undetectable in a competitor's product.

The bottom line is that the hype and doomsday scenarios have little foundation in reality.

Patents are fundamentally an instrument of commerce and business, not of technology, but are often misunderstood from a business and economic perspective, especially by people who understand only the technical aspects.

As I pointed out in my previous post, you conveniently "forgot" to back your theory about checks and balances with facts, so I'm sorry to inform you that the whole point of your blog entry was just that you *believe*, with absolutely no evidence, that there are checks and balances.

I happen to think the opposite for the following reason:

1) Software Patents miserably fail there stated goal of spreading innovation. As an computer scientist and engineer, I've yet to meet some co-worker getting any useful information from patents. The reasons are obivious :
- reading software patents is boring and uninformative : they are not written to present ideas in the simplest and easiest way, because the intended audience (pattent office) must *not* think the invention is obvious.
- reading software patents is dangerous, as you will find many testinomy on the web such as

> >I myself refuse to read any patents, on the grounds that knowingly

> >violating a patent is a worse crime than unknowingly doing so.

It is not some groundless fear from some clueless software writer, but the advice given by it's (really big) company's patent attorney.

2) Neither the patent applicant nor the patent office have any financial interest in refusing to grant a patent.

The result is obvious: numbers of software patents and resulting extorsions and lawsuits is skyrocketting at exponential speed. Exponential growth is *not* a sign that the underlying system is subject to "checks and balances".

What you describe regarding disincentives is probably true for the type of clients you advise. It is not true for companies like IBM and Microsoft. In a lot of cases, they do not acquire patents to win back investments on performed research, but for strategic purposes.

Quantity goes above quality in that case. If they desperately want access to someone else's patents, or if they are annoyed by some competitor, they can then use those patents to get what they want.

A good example of such an (attempted) patent is EP1325428. IBM tried to get a patent on case conversion using lookup tables (with escape codes for special characters). It was not granted, fortunately.

Nevertheless, IBM did attempt to get this patent, although it is a quite low level thing (and quite trivial with lots of prior art at that). Why? Because that's simply the most obvious way to perform case conversion, and many programs are bound to infringe on this patent.

If they'd really want to get someone down, they could probably spend some reverse engineering time on that person's/company's programs and identify several infringed patents similar to the one they tried to get on case conversion (but which were granted). And then there are of course the low-level patents on things which are required to support official or de facto standards (such as RLE compression for JPEG).

FWIW, I don't think FFII has ever predicted an apocalypse in software development due to software patents. Others (like e.g. this consultancy company: http://www.ovum.co.uk/go/content/c,50373) have toyed with that idea, though (in case all companies would suddenly start enforcing their software patents).

All we are saying is that less (as opposed to more) innovation occurs when software patents are codified, and that especially small companies are disadvantaged by a software patent regime (to which category most European companies belong, incidentally).

Bernard:

One of the most underutilized aspects of the patent system is mining the published applications for useful knowledge. In one company, I was given free reign to do so, while in another of my previous employers, we were told exactly what you cite: do a prior art and you will be fired for fear of the increased liability.

For very large companies, the second position makes sense. However, for small companies, where the entire scope of the company's products are well understood, the risk of a problem is much less while the benefits can be extraordinary.

As you correctly point out, it is often difficult to read a patent and see the 'white space' that is unclaimed. Further, it takes a special education and talent to read and decipher what is actually in the patent.

Mining the patent database can be an extremely useful technology, but one that is underutilized.

As most software engineers know, it is much better to build on someone else's history than reinvent the wheel, so to speak. The innovation comes on building on other's ideas, not merely copy and pasting them.

Jonas:

You make some interesting observations about the very large companies. Often, very large companies use their patent porfolio as a defensive tool: when sued by someone else, they countersue using their portfolio. This often results in a cross licensing arrangement. In other cases, the two parties may each build up a patent portfolio and, under a theory similar to Mutually Assured Destruction, may wind up with a 'silent cross license.'

My basic argument is that the patent system is underutilized and often misunderstood on the mechanics of how it encourages innovation. Removing patent protection will remove that encouragement and innovation will suffer.

The mere fact that the patent system is underutilized is not a reason to trash it all.

Eurpoean software companies are disadvantaged at least in one way because they are not all taking advantage of the US patent system. Even if you disagree with the system, from a business standpoint you should make use of it.

regarding usefulness vs danger of reading patents, I think it all depends if you are talking abour genuine non obvious patent or just ip-grab patent.

The vast majority of patents I've seen were more of the second kind (references available), so usefulness was zero and danger real.

For useful ideas, I use citeseer anyway, where things are explained by computer scientists for computer scientists.