On the day before the Software Patent Debate Igor and I got some bad news. The lawyer who had said he would be able to present for the Pro Patent position would be unable to attend the debate. We needed to find someone credible, someone knowledgeable, someone who could put on a show. And we needed someone at almost the last minute. Despite impossible odds Igor thought of the perfect person; Brett Roberts, former Platform Manager, strategist and my long time and good natured protagonist. Thanks to the magic of modern communications in short order we had secured Brett as our debating opponent.
First let me thank Brett for taking up the challenge at such short notice. The debate simply would not have been the same without his frank and passionate defense of patents. We may not sit on the same side of the fence in terms of our views, but we have enjoyed challenging each others views in public on many occasions. The debate would be no exception.
Note: Links point to recordings of each speaker, hosted on Youtube.
I argued that software patents stifle innovation. When ideas are copied, extended, built upon - we all benefit. Patents stop this and thus stifle innovation. He argued that patents not necessary to protect industries based on ideas e.g. publishing because copyright does a good job. He pointed to the negative impacts of software patents such as the Android litigation which is stifling competition.
Mitchell argued that the existing system works pretty well overall, and that the worst defects are exceptions to the rule. Patents help innovation and commercialisation. The trade and negotiation in patents prevents innovation from being stifled. Parties small and large are able to licence patents and use them. Patents encourage sharing of software ideas because they are protected. Patents are good for start-ups and provide an incentive to invest. Patents considered best at providing inventors with moral recognition. US in early 90s extended patent system to include circuit boards - followed by a boom of innovation and commercialisation.
Igor argued that patents are not a property right. They are a government-granted monopoly. You are allowed to use your property fully and freely without a patent. And if you create something, and want to use your property, you might lose that right if someone else has been granted a patent. Like other monopolies, patents are bad for competition, and thus for the consumer. The initial success of companies like Microsoft, Apple etc owed nothing to patents. NZ patents no use internationally because you will need patents in those countries e.g. US. Without software patents in NZ, NZ software companies can operate without fearing being shut down locally. Patents are expensive to get and defend.
Brett argued that patents are considered useful by large multi-national companies that employ millions of people and generate billions in revenue. Apple likes patents and it gave us the iPhone. Some companies supporting software patents pay more for licensing patents than they receive from them. Claimed that for every case of a public patent dispute, there are hundreds, if not thousands, of cases which are amicably settled that we never hear about. The tip of a very large iceberg. Important that inventors get the choice of the IP protection that suits them - including patents. Argued that patents provide a way for the smallest of inventors to deal with the largest of companies. Suggested that patents level the playing field quite dramatically. Innovation is invention plus commercialisation. Investors will look favourably on patents. May be a prerequisite.
I continue to argue that patents are a bad idea - easy to see by looking at the impact if they were applied to the book publishing industry. Constant risk of patent infringement when writing. As it is with software - you cannot write any reasonably sized piece of software without the risk of being sued for patent infringement. Android being sued for patent infringement is a bad thing. Software patents used as a weapon againstcompetition. No requirement to be reasonable or fair. Fear of litigation can be used to prevent investment in competition. Word processing storing data as XML patented - which is ridiculous given that XML is for the storage and exchange of information. This patent used against Abiword. Graphene example - the inventor has tried to patent it. Went to one of the largest electronic companies to see about licencing. They said they would throw a hundred patent lawyers at it and patent all around it and they're going to put him into litigation until he's dead. Stacker - disk compression utility. Microsoft treated the smaller company very unfairly. Naive to assume large companies will treat small companies well.
Ben argued that software patents enable small players to face the giant corporates such as IBM, Oracle etc. OK to give small companies a break. Worth giving startups this chance even if not perfect competition. Patents are to allow you to make enough money and get enough of a head-start to make it worthwhile for you to innovate. Software patents have problems but they are small and the exception. Not having software patents could cause problems with international access. Patents may be the only way of making money if you can't commercialise it yourself. Shouldn't criticise patents because bad people misuse them - they misuse everything. Not a problem because a price can always be negotiated - they want the money. Books don't need patent protection because creating a book is relatively easy. Writing software, however, is very expensive and that money must be recouped. Patents reduce the risk because not so much rides on the success or failure of your commercialisation. You will still get a return. Makes it worthwhile embarking on major technical innovations where the up-front investment is much higher. Software patents remove the risk that Google is going to swoop down, steal the idea, and make all the money off it. A patent is a piece of property you can raise money off. Patents ensure disclosure happens. Patents encourage people to make something better because they can't just make what you have.
Mitchell summed up by asking what is best for innovation? No major, fundamental problems with status quo. Concedes it is expensive but still thinks it has value. Android situation is exceptional, at the fringes. And the courts will do the right thing in the end. Critical to an innovative economy. Levels playing field for start-ups dealing with large companies. Skype given as an example. Patents let everyone see how something works. Not hidden. Apple's touch interface used as an example. Lets Google etc make its own. Removing patents will do more harm to innovation than keeping them.
Igor sums up for the affirmative. In software, licensing deals happen all the time without patents using compiled code. No need for patents. Patent disputes are not exceptional. That is how they are enforced. Skype started without any patents. The only reason you can only get investment or a licensing deal if you have a patent is because the patent system exists. Without it, you wouldn't need the protection. If you don't have a patent, the state can take away your right to use your own property (because they granted a patent to someone else). A patent is not a property right, it is an exclusion. It only tells you what you can't do. The patent lolly scramble enriches lawyers and prevents innovation. Most software developers in NZ do not support patents.
My thanks to Hengjie Wang for organisation of the debate, Mitchell Cooper, Ben Milsom and Brett Roberts for doing such a good job of presenting the pro software patent argument, and the audience who were by no means passive spectators, especially at the end during question time. Finally, thank you to Grant Paton-Simpson for the commentary above.