As someone who writes software for a living, I can tell you that the concept of patents on software needs a serious revision at a minimum and may be completely useless for the purposes the Founders of the USA intended, quite early in the Constitution: Article 1, Section 8–“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.

The key bit for software patents is the rationale: “To promote the Progress of Science and useful Arts,” which provided a test for such laws: do they, in fact, help progress? I’m prepared to even accept that non-obvious fundamental algorithms might be patentable, such as the infamous LZW patent.

The problem is that more and more patents look like Amazon.com’s even-more-infamous one-click patent, in which the ability to remember who you are on a Web site and click a single button to order and ship to the address on record was considered non-obvious and something that needed to be protected for 17 years.

Bullshit. Given those requirements, which aren’t exactly genius-level, I could come up with half-a-dozen ways to implement it, all of which would infringe on Amazon.com’s patent–and I’m not going to shatter records with my programming ability any time soon. Fortunately it’s not actually that bad–most people aren’t stupid enough to let strangers who come to the computer behind them commit them to buying anything.

Nonetheless, if you combine the two: the obviousness of the Amazon.com patent with the unenforced-until-the-last-hour nature of the LZW patent, you create a dangerous situation. Say I create a nifty feature for our content management platform that happens to infringe on a patent for, say, making widgets turn green when you click a form button. It’s pretty trivial behavior. Now say there’s some law firm collecting patents out there who are waiting until years into the patent to make sure that as many people as possible are infringing before they announce that anyone using it will have to not pay to continue to use the feature but will also have to pay them back royalties. Microsoft can fight this, as they have deep pockets (and, if the company threatening them actually makes stuff, they can counter-threaten with their own patent horde).

But what about small companies who do most of the innovation in software? We don’t have that choice. Not only will we not be able to fight it, but we don’t have patents of our own (not worth it, and we give our code away anyway, being paid instead for implementation and customization). And if it’s a law firm that has no products, our having patents would be no defense: they don’t make anything so they can’t be infringing.

That has a distinct chilling effect on innovation, and harms the progress of science and useful arts. Remember, lawyers don’t actually make anything, and the service they provide is always a cost.

Until this is all cleared up, it’s best that software patents be eliminated altogether. This is still possible in Europe, and if Europe stops them it will put pressure on the US to reform their ways. So I urge you to support this organization and link to it if you have a blog or Web site:

You can read from better programmers than I why this is a very bad and dangerous idea, from the perspective of your standard of living. Even if you don’t use computers directly, the people you buy from or interact with do.