Software Patent Myopia
Software patent myopia
December 12, 2007 · Filed under Software patents & innovation
Some researchers have argued recently that worries about software patents are overblown. For example, Martin Campbell-Kelly asserts his thesis that “The anxieties expressed in the early 1990s about the effect patents would have on the software industry have not been realized.” What were these “anxieties”? Campbell-Kelly tells us, “Opponents of software patents argue that patent ‘thickets’ will necessarily impede the flow of new software products.”
Similarly, Rob Merges states boldly that “the predictions of the software patent doubters in the early 1990s have been effectively refuted so far.” He, too, tells us that the patent doubters were concerned about the effect of patent thickets on entry into the software industry. So, too, do Ronald Mann and Michael Noel and Mark Schankerman.
Beating a straw man?
I wonder whether these proponents of software patents are looking for evidence where they are unlikely to find it, at least not today. They seem to look for a surprisingly limited range of effects among a very limited range of software innovators. Then, failing to find evidence of these effects, declare that the critics of software patents are refuted.
First, concerns about software patents have involved much more than worry about software industry entry and these concerns have been held more broadly and much longer than these authors seem to suggest. Major computer companies opposed patents on software in their input to a report by a presidential commission in 1966 and in amici briefs to the Supreme Court in Gottschalk v. Benson in 1972. Major software firms opposed software patents through the mid-1990s (for example in USPTO hearings in 1994). Surveys of software developers in 1992 and 1996 reported that most were opposed to patents (Oz 1998).
Moreover, this opposition has been concerned about more than just patent thickets, including concerns about the lack of prior art, the difficulty of defining the boundaries of software patents, the fear of excessive litigation and other costs of patents. Yet these researchers ignore these issues despite growing evidence of problems in these areas (see the chapter on software patents in my forthcoming book, Patent Failure, with Mike Meurer).
Second, firms outside the software publishing industry obtain most software patents—95% of them (see Bessen and Hunt 2004). Computer and electronics firms acquire the largest shares and these industries are known to have substantial patent thickets. Clearly, researchers cannot draw representative conclusions by examining only a small group of patentees who happen to be in the software publishing industry.
Conversely, software firms acquire relatively few patents at all. Only 20% of venture-backed software startups apply for patents within four years of receiving financing [Mann 2005]. Through the 1990s, the majority of public software firms still did not have patents. Today, although many have begun acquiring patents, many large firms, such as Google, still have very few patents. Clearly, one is going to have a hard time finding adverse affects of software patent ownership among a group of firms who have very few of them.
This may be changing, of course. However, that means that adverse effects of software patents within the software industry, including from patent thickets, may arise in the future, if and when there is a patent thicket in this industry. But a search for effects of a patent thicket in this small group of patentees today is sure to find a misleading null result.
Whatever one thinks of software patents a priori, surely we can do better than to take a myopic view of the potential problems of software patents and of where they are likely to be found. This research seems a lot like arguing that cigarette smoking isn’t bad because it doesn’t cause cirrhosis of the liver or because it helps fight obesity.
–Jim Bessen
Campbell-Kelly, Martin. 2005. “Not All Bad: An Historical Perspective on Software Patents.” Michigan Telecommunications and Technology Law Review, 11(2): 191-248.
Mann, Ronald J. 2005. “Do Patents Facilitate Financing in the Software Industry?” Texas Law Review, 83(4): 961-1030.
Merges, Robert P. 2006. “Patents, Entry and Growth in the Software Industry.” working paper.
Oz, Effy. 1998. “Acceptable protection of software intellectual property: a survey of software developers and lawyers.” Information & Management, 34(3): 161-173.
From April 2012