A while back the threat of software patents hovered over Europe.
Patents are a legal instrument tied to inventions that let others stop you from using those inventions. Software patents let you do the same with bits of computer programs, which a lot of people disagreed with, since there are often just a few very obvious ways to solve programming problems and every computer program consists of thousands of such inventions, so every programmer would have been stopped dead in their tracks if software became patentable.
I was tangentially involved in the successful fight against software patents and one of the things that struck me then, and that strikes me even more now, was the argument that software patents were somehow special because they aren’t designed to protect the lone inventor. What’s remarkable about that argument is not so much the argument itself, but the suggestion that ‘regular’ patents do protect the lone inventor. All evidence suggests they don’t.
A couple of years back Maciej Ceglowsky explored how patents worked out for one of the major inventions of the twentieth century, the aeroplane. The American brothers Wilbur and Orville Wright were two bicycle makers who took a scientific approach to inventing an airplane (an idea who’s time had certainly come). They performed “wind-tunnel tests, [corrected] longstanding errors in aeronautical theory, and they systematically applied their experimental results in designing each subsequent version of their gliders and aircraft”. On 17 December 1903 they made the “first controlled, powered and sustained heavier-than-air human flight” (Wikipedia dixit).
Once they did that, Ceglowksi said, they closed up shop, headed for the patent office, and “stopped flying for two and a half years”. But rather than licensing their patents to airplane manufacturers the Wright brothers started to sue others they suspected had implemented their inventions. “[The] Wrights became so consumed with their lawsuits that they had no time or energy left for further work, essentially becoming the SCO of the early aviation age.”
For the Wright brothers, the patent struggle was a series of Pyrrhic victories. They wanted justice and credit, and ideally the freedom to pursue their research further. Instead they found themselves consumed by litigation, and forced to watch others catch up with and overtake their technical lead, particularly in Europe, where aeronautical research had strong state support. The endless legal battle over the airplane patent may even have contributed to Wilbur Wright’s early death – he came down with typhoid at an especially rough patch in the legal proceedings, and died at age 45. His brother Orville lived long enough to see the Wright company taken over by Curtiss in 1929, in the most bitter of ironies. Neither brother made any substantive contribution to aviation after 1908.
Of course, if anti-software patent-campaigners had gone into battle with the correct argument that patents in general are useless to anybody but judges, politicians, patent lawyers and the patent office, they would have lost. Special pleading ironically made sense in their case. By just targeting a new part of patent law that nobody was yet making any money off, they made sure their opposition had less to attack them with.
It makes me wonder though, if important innovation is truly stymied at all times by the patent system, wouldn’t it be time to kill off the patent system?