I’m always searching for good analogies that highlight what’s wrong with software patents. I don’t remember where I saw this, but I like it.
We all know the story of how Thomas Edison invented the lightbulb. He knew the basics of what he needed to invent: something that would glow consistently when a current was applied to it, but wouldn’t burn up too quickly. The idea for this had been around for fifty years, but no one had been able to make it work practically. He and his assistants tried some 3,000 different ways of making it work, and finally figured out how. And thus the modern lightbulb was born, with Edison as its inventor.
Flash forward to modern software patents. Edison isn’t the inventor, and doesn’t receive the patent or any accolades. Instead, some guy fifty years earlier has the idea for an incandescent lightbulb and describes it without having any practical way of making it work, and just sits back and waits for Edison to come make it a reality. Welcome to the modern patent troll.
Traditional patents are granted for the method by which an invention accomplishes something – the specific filament, for example, or a machine that works in a particular way to do something. Software patents are granted for the concept that the software accomplishes, not the actual code that accomplishes is (that code is still protected by trademark). Amazon’s (in)famous one-click patent doesn’t cover the actual code written to make one-click happen (there are many ways one could write that code), but covers the idea of writing code to make that happen.
If we applied modern patent practices a hundred years ago, Eli Whitney wouldn’t have patented his actual cotton gin, but the idea of using a machine to separate cotton fibers from seeds, regardless of how the machine was designed or built. Edison wouldn’t have had to spend time figuring out how to build a working lightbulb, or patenting the specific method – the vague idea would have been enough.
Edison famously said that invention was 1% inspiration and 99% perspiration. Today’s software (and many hardware) patents are awarded for inspiration, not perspiration.