Software Patents – Under Attack Again

Patented software —
The Times says it’s a bad thing
But we think it’s good

A recent piece in the New York Times, “The Patent, Used as a Sword” is a full-on attack on software patents. We disagree.

The authors, Charles Duhigg and Steve Lohr try, but fail, to make their article read like news instead of an editorial. Yes, they present a few quotes from Apple on the importance of software patents. And then they immediately rebut and dismiss them.

The article builds the case against software patents around the story of an entrepreneur, Michael Phillips, founder of voice technology pioneer Vlingo (not to be confused with Vringo) who lost a patent fight against the much larger Nuance. The way the article reads one would come to the conclusion that Nuance abused the patent system to steal Phillips’ company and technology from him.

Yes, Phillips won one court case against Nuance. However, Nuance also asserted that Vlingo was infringing several other patents. The authors do not take into consideration the possibility that Vlingo was, in fact, violating some of the Nuance’s patents. Nor do they look closely at whether some of Vlingo’s problems stemmed from bad business decisions that Phillips made early in the process of the litigation against Nuance.

Duhigg and Lohr bring dubious “evidence” that software patents are evil. They cite a Boston University study claiming that a “patent tax” adds 20% to smartphone development costs. They also cite a Stanford University analysis claiming that in the last two years $20 billion was spent on patent litigation and patent purchases, an amount, the authors note, “equal to eight Mars rover missions.”

There’s something a little disingenuous about many of these arguments. Presumably Google’s purchase of Motorola Mobility is part of the “$20 billion spent on patent litigation and patent purchases.” As if it’s not possible that Google made the investment in Motorola Mobility because they wanted to acquire the technology to make products, not just to defend against lawsuits.

The implication of the article is that software patents hinder innovation and cost consumers money. Without software patents, the argument goes, there would be more competition, so products like the iPhone would be cheaper. The important point the authors miss is that without strong patent protection, products like the iPhone would not exist at all. The only reason Apple can make the massive investments in R&D to develop highly innovative products like the iPhone is because patents protect their products. As an unnamed former Apple executive is quoted in the article:

If we can’t protect our intellectual property, then we won’t spend millions creating products like the iPhone.

Without strong patent protection, as soon as a product like the iPhone was introduced there would immediately be “clones” and prices would plummet, leaving Apple without the resources or the incentive to invest those millions in R&D.

Yes, there may be some problems with software patents that are overly broad getting through the system. The answer is not to remove the incentive to innovate by disallowing all software patents. The answer is to make sure the USPTO only allows strong patents to get through. And if the occasional weak patent does get through, the court system is there to catch it.

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