The surprise to most people isn’t that I do not believe that software should be patentable. Given my long term interest in and coverage of free and open source software, I’m supposed to be at least mildly anti-establishment. It is also statistically unlikely that I would be in favor of patents, because industry sentiment is overwhelmingly against them at the present time (as the author acknowledges here).

Most expect me to argue, as has Brad Feld’s anonymous lawyer, James Surowiecki or Red Hat, that patents are actually counter productive with respect to innovation. That the entire purpose of a patent – to stimulate invention by granting the inventor wide-reaching protections – is subverted as broad, over-reaching patents are accumulated like mercury by competing organizations that are unwilling, unable or both to work together to advance markets. But while I agree with the sentiment, that’s not why I am against software patents.

Others expect me to assert, as did Union Square Ventures’ Brad Burnham, that software is, by its nature, different from physical inventions and innovations. That it does not require the same protections to stimulate invention that physical goods do. But while I believe this to be true, this is not why I’m against software patents.

Others expect me to argue that, as Stephan Kinsella has, that patents are part of a system that is a net drain on the global economy ($31B, by his estimate). This is not why I’m against software patents.

Still others expect me to argue that the greater good – a dangerous phrase if ever there was one – demands that software be unpatentable. That Nathan Myhrvold’s Intellectual Ventures is the epitome of evil in the world, with a revenue model based strictly on extracting value from an antiquated patent system that has been mistakenly applied to an industry that requires no such protections. But while I personally believe that Myhrvold’s company is based entirely on extracting profit from a broken system rather stimulating invention as he claims – that Intellectual Ventures is just a version of those infomercials seeking ignorant “inventors” to exploit writ large – this isn’t why I’m against software patents. Continue reading.