Software, Patents, and Innovation

An interesting entry over at the open source initiative asks if patents hinder or encourage innovation. This is an interesting question regardless of the field in question. The entry talks about the centuries-old case of the steam engine. Once a patent for an idea has been established, anyone wishing to employ this idea will be in debt to the patent holder. How likely is anyone wishing to use or further develop the idea to get involved? Also, how does the patent holder benefit from this situation? They don't. In fact, the encouragement often works in the opposite direction. In many cases, there is no alternative than to use an idea that has been patented. This restriction then grows to resentment toward the patent holder and that is not something any designer, especially in the software industry wants. The idea of openness and community collaboration not withstanding, software suffers the same patent-type problems.

Early on in the development of the steam engine, the idea was patented. This brought about an era of the steam engine where there was no spectacular innovation. Years later, the steam engine designers lifted the patent. Sure enough, this brought about an era of design innovation. Such much so that the innovation rate of the steam engine doubled over the previous patented era. Designers and engineers are not turned away by the thought of patent infringements.

It seems that patents in general do not benefit anyone. The main motivation patented ideas offer is to create the patent in the first place. This is an extremely flawed approach to building anything well. The concept of "do something you love" is tossed out the window. Who loves to patent things? Why not do something well and have the rest follow. In the end it all comes down to the designer's attitude. In the case of the steam engine, once the patent was lifted, attitudes changed. That, in turn, changed everything.

In software, patents are hard to define. There is simply no way around it. Especially trying to patent an algorithm of some sort. If I were to take an existing algorithm that has been patented, completely re-factor it, and end up with the same result, would that be considered patent infringement? If so, what is really being patented is a specific output paired with a specific input. That would be very unjust.