The nature of a software patent.

One source that was not helpful for this analysis were software patents. The reason? Software patents have essentially no relationship to software innovation. Those unfamiliar with software patents may find that shocking. There are several basic problems with software patents, compared to actual innovation:

1. almost all truly important innovations in software were never covered by patents, so using patents as a primary source would omit almost all of the most important software innovations;

2. as software patentability has increased, the number of software innovations has decreased; and

3. software patents are often granted to cover ideas that are obvious to practitioners of the art or have prior art (even though these aren't supposed to be patented).

There are many reasons most of the most important software innovations were never patented. Historically, software was not patentable, and it's still not patentable in vast number of countries (including the EU). Many believe software should never be patentable, and many of them oppose software patents on ethical or moral grounds as well as on pragmatic grounds (and many of them will not apply for patents for these reasons). For more about the many who oppose software patents, you can see the ffii.org site and the League for Programming Freedom, including statements by software vendor Oracle and and a list of software luminaries opposed to software patent (including Donald Knuth), Dan Bricklin (inventor of the spreadsheet) explains why introducing patents to the software industry, about 50 years after the industry began (and after it had already been flourishing without them), is a mistake and hardship. AutoCAD's co-author and Autodesk founder John Walker wrote 'Patent Nonsense' where he states that" Eversince Autodesk had to pay $25,000 to 'license 'a patent which he claimed the invention of XOR-draw for screen cursors (the patent was filed years after everybody in computer graphics was already using that trick), I've been convinced that software patents are not only a terrible idea, but one of the principal threats to the software industry ... the multimedia industry is shuddering at the prospect of paying royalties on every product they make, because a small company in California has obtained an absurdly broad patent on concepts that were widely discussed and implemented experimentally more than 20 years earlier-' Forbes article "Patently Absurd' also notes the problems of patents, as does eweek. One survey of professional programmers found that by a margin of 79.61% to 8.2%, computer programmers said that granting patents on computer software impedes, rather than promotes, software development (the remaining 12.2% were undecided). By 59.20% to 26.5% (2.1), most went even further, saying that software patents should be abolished outright. Professors Bessen and Maskin, two economists at the Massachusetts Institute of Technology (MIT), have demonstrated in a report that introducing patenting into the software economy only has economic usefulness if a monopoly is the most useful form of software production. This is concerning, because few believe that a monopoly is truly the most useful (or desirable) form of software production.

Paul Vick, lead architect for Visual Basic Net at Microsoft, was required by his employer to file for a patent on an obvious pre-existing idea (the IsNot operator), which the patent office nevertheless granted--Paul's posting on Software patents states, 'I don't believe software patents are a good idea ... software patents generally do much more harm than good. As such, I'd like to see them go away and the US patent office focus on more productive tasks ... One of the most unfortunate aspect of the software patent system is that there is a distinct advantage, should you have the money to do so, to try and patent everything under the sun in the hopes that something will stick.... Microsoft has been as much a victim of this as anyone else, and yet were right there in there with everyone else, playing the game. Its become a Mexican standoff, and there's no good way out at the moment short of a broad consensus to end the game at the legislative level as far as the specific IsNot patent goes, I will say that at a personal level, I do not feel particularly proud of my involvement in the patent process in this case.'

As patentability has increased, there's good evidence that the number of software innovations has decreased. Bessen and Maskin also demonstrated a statistical correlation between the spread of patentability in the United States and a decline in innovation in software. In particular, between 1987 and 1994, software patents issuance rose 195% as yet real company funded R & D fell by 21% in these (software) industries while rising by 25% in industries in general. This paper gives additional evidence that software patents are inversely related to innovation, its hard to not notice that as patenting become more common (e.g., 1987 and later) that the number of major innovations slowed down and are almost always not patented anyway. Although these only show con-elation and not causality, other data suggest that there is a causal relation. Thus, not only do software patents fail to help encourage innovation--they appear to actively retard innovation.

Bruce Perens explains why patents cause serious problems in creating and implementing standards. Since patents retard the creation and use of standards, they also retard the industry as a whole (since relevant, widely-implemented standards are a key need in the software industry).

The patented European webshop is an excellent illustration of the problem--it shows a few of the many obvious, widely-used ideas of granted European patents. In short, it demonstrates why patents are a poor match for software. There are also many reasons why software patents are often granted that cover obvious ideas and prior art (which can give the illusion of innovation without actually having any). As noted by an FTC analysis of patents in the U.S. about 1,000 patent applications now arrive each day, so patent examiners have from eight to 25 hours to read and understand each application search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions. (The article also notes--somehow without irony--that most granted patents are in fact obvious to practitioners, even though that is illegal.)

Many other studies have noted that patent examiners have a poor database of prior art in software, so it's hard for them to find prior art. But the biggest problem is that there are no incentives for anyone in the patent process to reject bogus patents. The patent applicant has every incentive to ignore prior art, the patent examiner has little time or resources to do this search, and a patent examiner who doesn't commit enough resources to the search is rewarded (in contrast, a patent examiner who spends too much time on each patent will be punished). And it's difficult for a patent examiner to declare something is 'obvious'; after all, the people who are paying money say that their patent request isn't obvious, and there's little downside for an examiner to agree with the petitioner. Also, other areas of the software industry generally pay more than a patent examiner's salary, decreasing the likelihood that a software patent examiner has the best software experience. The entire software patent examination process favors granting software patents for obvious and prior art. The patent 'review' process has become so much of a rubber stamp that Steven Olson managed to obtain a patent on swinging sideways on a swing, an absurd patent that was granted the U.S. patent process.

Frankly, I think permitting software patents in the U.S. was a tremendous mistake, and a misuse of the original patent laws. Very few of the innovations listed here were patented, and of the few that were (e.g., the mouse and RSA), there's little

The mouse patent never made much money for its inventor, and although the developers of RSA did make money, there's no evidence that they would not have developed RSA without the offer of a patent. Thus, there's a good case to be made that these ideas would have occurred without the patents, and that the patents impeded deployment and increased customer costs without encouraging innovation. The patent laws were originally written to specifically prevent patenting mathematical algorithms, and courts have basically rewritten the laws to re-permit patenting of mathematical algorithms (which is fundamentally what any software patent is). Permitting software patents has done almost nothing to encourage innovation nor award innovators, and the harm that its done far, far exceeds any claimed good. Most key software technology innovations were never patented, so tracking patents is certain to miss most of the most important innovations. Conversely, since patent examiners have a poor database of prior art in software and there are no incentives for anyone in the patent process to seriously search for prior art, software patents are routinely granted for previous and obvious inventions in software technology. Basically, the number of patents granted for software primarily shows how much money an organization is willing to spend to submit patent applications--it has nothing to do with innovation. The W3C has noted that its policy of ensuring that all W3C standards were royalty free has been key to universal web access, anything else would cause dangerously harmful balkanization. Vint Cerf stated that part of the reason the Internet Protocols took hold so quickly and widely was that he and Dr. Kahn made no intellectual property (patent) claims to their invention, 'it was an open standard that we would allow anyone to have access to without any constraints.'

Any statistic based on software patents is irrelevant when examining software innovation--because today's software patents have nothing to do with innovation.

What's Not an Important Software Innovation?

It's difficult to identify the "most important" innovations within the last few years. Usually what is most important is not clear until years after its development. Software technology, like many other areas, is subject to fads. Most 'exciting new technologies' are simply fashions that will turn out to be impractical (or only useful in a narrow niche), or are simply rehashes of old ideas with new names.

As I noted earlier, many important events in computing aren't software innovations, such as the announcements of new hardware platforms, indeed, sometimes the importance isn't in the technology at all; when IBM announced their first IBM PC, neither the hardware nor software was innovative--the announcement was important primarily because IBM's imprimateur made many people feel confident that it was 'safe' to buy a personal computer. Standards as extremely important in computing just as they are in many other fields). However, the notion of having a standard is not, in itself, innovative--standards long preceded computing. Standards themselves generally do not try to create significant new innovations (and rarely work when they do)--standards usually attempt to create agreements based on well-understood technology. There are many important events in computing history involving standards. For example, the Committee on Data Systems Languages (Codasyl) was formed in 1959 to create the Common Business Oriented Language (COBOL). COBOL was very influential for a long time, because it created a standard language that could be used on many different computers. The same is true for Algol or C, or C++, or C#; all are important languages in the history of computing. However, by themselves these standards were not innovative; they attempted to gain agreement on the specifics of pre-existing ideas. Any significant innovation embodied in a standard was usually developed and tested many years before the standard development.

Here are a few technologies that, while important, aren't really innovative:

1. XML. XML is simply a simplified version of SGW, which has been around for decades.

2. SOAP. SOAP is yet another remote procedure can system, employing XML (and often HTTP).

There's nothing wrong with not being innovative. Indeed, a technology should primarily be measured as whether or not it solves real world problems (without causing more problems than it solves). However, the focus of this paper is innovation, not utility. Do not confuse innovation with utility.

Conclusions

Clearly, humankind has been impacted by major new innovations in software technology. But the number of major new innovations is smaller than you might expect, especially given the many who declare that software technology "changes rapidly." If you only consider major new innovations in software technology, instead of various updates to software products, fundamental software technology is not changing as rapidly as claimed by some I believe that this list is evidence that people are far more affected by other issues in computing than by major new software innovations. In particular, I believe that there are at least three reasons for the illusion of rapid changes in major software technology:

1. People have been able to apply computing technology to more and more areas due to rapidly decreasing costs. Computer hardware performance has improved exponentially, its size has dropped significantly, and its cost has decreased exponentially, making it possible to apply computing technology in more and more situations. The increasing hardware performance has also allowed developers to use techniques that decrease development time by increasing computing time; this trade reduces the development cost and time for software, again making it less costly to apply computing technology (by reducing the cost of software development). The idea of automating actions is not, by itself innovative, but automation can certainly change an environment.

2. Increasing use begets increasing use. And when a technology is widespread or ubuiquitous, it often enables many widespread uses and social changes. In those cases, people are feeling multiple rapid social changes, caused by the widespread availability of a technology, rather than multiple rapid changes and innovations in the technology itself. When the web browser was first introduced, comparatively few people used it because there was relatively little information or services of interest to them available through it. But once some was available, other providers of information and services had users/customers, enticing them to use the WWW, causing an exponential increase in use. A service can become particularly influential if it becomes a standard (either because it's formally specified as a "de jure" standard, or simply through widespread use as a 'de fact standard). The idea of creating standards is not new, but once something becomes a standard, the idea's very ubiquity can mean that it will be widely used in places that it wouldn't be used before.

3. Software functionality can be changed over time, adding new functionality and generalizing a particular program's capabilities. However, when functionality is changed over time, this often requires that the human interfaces change as well. As a result, people constantly have to learn how to handle changes in a given program's interface. This gives some the illusion of constant innovative change in software technology, while instead, what is changing is a particular implementation. Intriguingly, the richest and most powerful software company currently, Microsoft, did not create any major software innovation as identified in this list. Microsoft did not even create the first useful or widely-used implementation of any major software innovation. Others have come to the same conclusions, for example, see the Microsoft "Hall of Innovation". This certainly casts doubt on Microsoft's claims to be an innovative company. For more information about this, see Microsoft the innovator?

In contrast, several major innovations were first implemented as open source software / Free Software (OSS/FS) projects, especially for those involving networks. Examples of innovations initially released as OSS/AFS or first widely distributed as OSS/FS include DNS, web servers, the TCP/IP implementations on BSD systems to create internetworks using datagrams, the first spell checker, and the initial implementation of lockless version management. Tin Bemers-Lee, inventor of the World Wide Web, stated in December 2001 that "A very significant factor [in widening the Web's use beyond scientific research] was that the software was all (what we now call) open source. It spread fast, and could be improved fast--and it could be installed within government and large industry without having to go through a procurement process." This may be because the ideas of open source software are quite similar to research approaches in general, e.g., in both systems publications are available to all and can be used as the basis of further work (as long as credit is given). The paper Altruistic individuals, selfish firms? The structure of motivation in Open Source Software found in a 2002 survey of 146 Italian firms that their primary reason for supplying OSS/FS programs was that "Open Source software allows small enterprises to afford innovation'.

It appears we're not as impacted by changes in software technology--we're more impacted by software's ubiquity and changeability, as the computers that software controls become ubiquitous and the software is adapted to changing needs.

www.dwheeler.com/innovationfinnovation.html