Patents allow certain companies or individuals to use their inventions exclusively for a certain period of time, to paraphrase the WIPO article. Patents confer a degree of ownership on ideas to create “intellectual property” until the patent expires, at which point the property becomes public domain. The patent system is codified in US law, with the legislative branch being given express power to establish “exclusive Rights [sic]” to intellectual property in the U.S. Constitution. The economic reasoning behind allowing entities to patent their ideas is that allowing protections incentivizes them to take the risks associated with researching and pursuing new ideas. In this way, patents are supposed to encourage innovation by adding an economic incentive. The ethical or moral argument for patents is that individuals who take the risks and perform the labor necessary to produce a new idea deserve a degree of exclusivity. Nearly anyone will agree that it is extremely unfair for another party to steal their idea and profit from it at their expense.
In an ideal world, patents would not be necessary. The maximum degree of innovation can only be achieved through the free flow and usage of intellectual ideas combined with an underlying incentive to develop such ideas (I’m using intentionally nebulous terms because I’m not sure what this incentive would be). Since (realistically) economic opportunity is the primary incentive for producing innovation, patents are necessary to a degree to protect less powerful players in the economy who are adding meaningful benefit to society. It’s not hard to see how companies with a vast infrastructure could easily “steal” the ideas and innovations of smaller companies without a patent system. This discourages such companies from entering the industry or even expending the resources to create and develop innovation. While I agree with some of Thomas Jefferson’s points in his Letter to Isaac McPherson, I think his statement that “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me” is fairly disingenuous. The labor and risk associated with developing an idea as well as the unrecognized economic gains inferred by the idea constitute a non-trivial theft, in my opinion.
As I feel many of the articles discussing patent trolls demonstrate, software patents are a dangerous entity. I believe complex pieces of software that comprise layers of a more “artistic” expression (like GUI-based packages and video games) may warrant patents and definitely warrant copyright. In these cases, I believe entities should reserve the right to copyright any artistic resources associated with the software, but the software itself does not warrant a patent, as it is merely a mathematical expression. Allowing companies to patent, for example “technology allowing users to ‘speed up or slow down the playback rate’ of Adobe Flash videos without sound problems” (Arstechnica) clearly demonstrate that the patent system is broken in my opinion. A five-year-old could come up with this idea and any company with competent software engineers could develop such a technology. There is little, if any incentive for companies to enter the industry when they have to wade through a quagmire of elementary, but nonetheless patented pieces of software. Even more complex pieces of software generally consist of arranging these smaller pieces of software in a way that they constitute a unique product. Just like I would not expect to be able to patent something I built out of Legos, I would not expect to be able to patent a piece of software. Artistic expression is far less granular, which is why I would argue software packages containing artwork are deserving of copyright protections.
The proliferation of patent trolls is a clear indicator that the system of software patenting is currently broken. With the amount of lawsuits that are issued, it is clear that it is extremely easy to accidentally violate existing software patents. The frequency with which your “unique idea” is violated is a pretty good litmus test for discerning whether the idea is truly unique and patent-worthy or just a common-sense development backed by a certificate that lets you legally extort money from other companies.
Peter Forbes 