Matt Raykowski (an OpenNMS OGP member) send me a link to an interesting video about the issue of software patents. Since it is called “Patent Absurdity” you can imagine the bias that it brings to the table, but I found the video to be rather objective.

I think software patents are wrong, mainly since the whole idea of patents was to apply to physical devices. While the history of patents predates the United States by thousands of years, when the American patent system was created in 1790 it was in order to “promote the progress of useful Arts”. The basic idea was to encourage creativity by guaranteeing a certain window of time to profit from those creations. This, in turn, should cause people to create more things and everyone benefits.

At issue is the question of does the act of installing software on hardware create a new device? It’s not easy to answer. On one hand, imagine if some creative software type managed to build a fully functional model of the human heart – one that could predict the effects of, say, new medication? Is that sufficiently complex and novel to warrant a patent? At the other extreme you have companies patenting digital versions of a shopping cart or “one click” ordering, which I think is crazy. As much of an Apple fan as I am, I think the idea of trying to patent the motion known as a “swipe” is ridiculous, but then again many companies are taking an offensive strategy with respect to software patents to prevent others from coming after them. Sure, the touch sensitive hardware involved in an iPhone is obviously patentable, but can you patent, say, how the phone is held? Pretty soon we’ll have patents on how to walk and chew gum.

There were two points in the video that resonated with me. The first was an analogy of software to music. There are no patents on music, yet the music business has thrived.

The second point was that software patents work against the promotion of “useful Arts.” Fear of infringing on a patent can actually stifle creativity. To return to the music analogy, imagine if the crescendo was patented, or a “the series of a dotted quarter note followed by an eighth note followed by a quarter note” (I just learned a simple version of “Ode to Joy” in my guitar lessons in which that was introduced). That is very close to what is happening with software patents.

This is not to say that there should be no protections for software. All software is covered as a creative work under copyright, and things such as “one click” ordering can be protected by trademarks.

Check out the video. It clocks in at 30 minutes but I think it is worth it to anyone interested in creating software, not just open source.