March 7, 2004
@ 06:26 PM

There's currently a semi-interesting discussion about software patents on the XML-DEV mailing list sparked by a post by Dennis Sonoski entitled W3C Suckered by Microsoft where he rants angrily about why Microsoft is evil for not instantly paying $521 million dollars to Eolas and thereby starting a patent reform revolution. There are some interesting viewpoints voiced in the ensuing thread including Tim Bray's suggestion that Microsoft pay Tim Berners-Lee $5 million for arguing against the Eolas patent.

The thread made me think about what my position on filing software patents was given the vocal opposition to them on some online fora. I recently have gotten involved in patent discussions at work and I jotted down my thought processes as I was deciding whether filing for patents was a good idea or not. Belows are the pros and cons of filing for patents from my perspective in the trenches (so to speak).


  1. Having a patent or two on your resume is a nice ego and career boost.
  2. As a shareholder at Microsoft it is in my best interests to file patents which allow the company defend itself from patent suits and reap revenue from patent licencing.
  3. The modest financial incentive we get for filing patents would make for buying a few rounds of drinks with friends.


  1. Filing patents involve having meetings with lawyers.
  2. Patents are very political because you don't want to snub anyone who worked on the idea but also don't want to cheapen them by claiming that people who were peripherally involved were co-inventers. For example, is a tester who points out a design flaw in an idea now one of the co-inventers if it was a fundamental flaw? 
  3. There's a very slight chance that Slashdot runs an article about a particular patent claiming that it is another evil plot by Microsoft. The fact that it is a slight chance is that the ratio of Slashdot articles about patents to those actually filed is quite small.

That was my thought process as I sat in on some patent meetings. Basically there is a lot of incentive to file patents for software innovations if you work for a company that can afford to do so. However the measure of degree of innovation is in the eye of the beholder [and up to prior art searches].

I've seen a number of calls for patent reform for software but not any that have any feasible or concrete proposals behind them. Most of the proponents of patent reform I've seen usually argue something akin to “Some patent that doesn't seem innovative to me got granted so the system needs to be changed“. How the system should be changed and whether the new system will not have problems of its own are left as excercises for the reader.

There have been a number of provocative writings about patent reform, the most prominent in my memory being the FSF's Patent Reform Is Not Enough and An Open Letter From Jeff Bezos On The Subject Of Patents. I suspect that the changes suggested by Jeff Bezos in his open letter do a good job of straddling the line between those who want do away with software and business method patents and those that want to protect their investment.

Disclaimer: The above statements are my personal opinions and do not represent my employer's view in anyway. 


Sunday, March 7, 2004 9:00:51 PM (GMT Standard Time, UTC+00:00)
CON: Many people can arrive at a particular design or algorithm independently of each other. Why should one of them be able to claim exclusive right to use such an idea?
Sunday, March 7, 2004 10:47:48 PM (GMT Standard Time, UTC+00:00)
How it really works, the original inventor doent patent an idea, and Microsoft patents it when they reinvent it. They not patenting inventions. It's greedy lawyers going crazy and programmers with no morals.
Monday, March 8, 2004 7:31:14 AM (GMT Standard Time, UTC+00:00)
Someone asked me once whether a piece of software should be patented. I replied that the pace of change is so quick in this industry that by the time someone figures out my particular technique for doing something, I've already shipped a couple of times, and come up with a better technique.

Patent protections are an ancient quaint idea that kinda worked when we were talking about slow dumb mechanical processes. In today's world they're just another tool in the competition war chest. Some other mechanism will surely replace them some day. But until then, just keep collection those little black cubes and couting your filing cash.
Monday, March 8, 2004 7:34:54 PM (GMT Standard Time, UTC+00:00)
The real problem with software patents is not that they are allowed, or that the technology moves too fast, or any of that. The real problem with software patents is that the patent office doesn't follow its own damn rules for patents. They are constantly granting patents for algorithms that are either obvious or for which there is immense prior art.

The point of patents was to reward people for inventions so that they spend effort inventing. But if you are instead mostly rewarding the obvious, you end up encouraging not invention but the ability to put together a patent application that can get through the patent office.
Tuesday, March 9, 2004 7:30:04 AM (GMT Standard Time, UTC+00:00)
Click on my name to find out the truth about the origin of the Microsoft XML patents.
Wednesday, March 10, 2004 3:08:14 PM (GMT Standard Time, UTC+00:00)
Patents, be they for the latest cuisinart appliance, super-duper drone fighter jet or software, are about protection of property.

A fundamental tenet of capitalism is the existence and enshrinement private property rights into law. Patents extend this concept into the sphere of recognizing and protecting the investment made either by individuals or corporations in developing a new technology.

I find it irrelevant to try and diminish the role of patents with respect to software just because it is an intangible product to our traditional way of thinking.

The fact is, there is little difference in patenting the mechanics behind a new anti-braking system and a complex software component that responds to thousands of requests per second.

A good deal of what we take for granted in the world around us has been the result of protecting investment in product development through patents. I would put more onus on the likes of rabid FSF and Slashdot maniacs to explain their world view and rationalize it beyond the confines of their own cubicle.
Chris R Chapman
Comments are closed.