Software Patents? No Thanks!

I just read an article on Gamasutra titled It’s Just a Game, Right? Top Mythconceptions on Patent Protection of Video Games. I am interested in news and articles on software patents, and I’ve always been against them. While I believe patents can cover a physical invention, like a better mousetrap or printing press, I don’t believe patents should cover things like mathematics or intangible ideas.

You want to protect your software? Copyright covers your needs. It’s cheaper, and it’s faster. Trademark will protect anything from logos to specific characters. But patents? Way too expensive. They also bring the software industry to a standstill rather than push its progress along as claimed. Patents are supposed to be granted for non-obvious inventions. Most software patents are for obvious ideas. Anatomy of a Trivial Patent shows how easy it is to make something obvious sound incredibly complex and inventive.

When I read this article, I was hoping to receive information that either supports my view or gives convincing arguments for the opposing view. What I read, however, was lame B.S. about the “merits” of software patents. I will now go through each of these myths getting “busted” throughout the article.

Myth 1:
The first Myth being “busted” here is that you can’t patent computer programs. The truth is, you can patent specific ideas that are used in video games, but the author decides to argue this myth by first pointing out that you can patent the computer/console hardware. Huh? He then gets to the software portion:

  1. “Scoring based on goals achieved and subjective elements” sounds awfully familiar. Oh yeah, it is because most games with scores give you points for doing certain tasks, and the idea that you can get points for doing things in a cool way isn’t all that innovative, is it?
  2. A patent on the use of a machine? Again, not the same argument here.
  3. Sega’s patent on making characters run out of the way of an oncoming vehicle. Something that happens in CARTOONS and real life all the time!
  4. Battlefield strength and morale in a strategy game. Aren’t board games using this mechanic? Couldn’t I just as easily call these elements something else, like “popularity” or “happiness points”?

He also talks about how you can patent the distinct way a logo appears on the screen. These are actually the also-controversial “design patents”. I think trademark would do just fine here. In fact, that’s what trademarks are perfectly suited for because that’s what they were made to protect! Let’s look at the entry in the US Patent database: D487,574 has a list of other design patents that say essentially the same exact thing:
“The ornamental design for an icon for a display screen, as shown and described.”
“The ornamental design for an interface for a display screen for an electronic device, as shown and described.”
“Surface ornamentation for a handheld computer or a computer-generated icon for a handheld computer.”
“Icon for a display screen.”

Aren’t patents supposed to be granted for inventions? What’s so inventive about each of these that the others don’t already have prior art on?

And in any case, at no point is the “myth” that you can’t patent computer programs actually busted. You can patent techniques and algorithms, not whole programs. Nice try, author.

Myth 2:
The argument being made here is that even if you make a clone of a game, you have to have something unique about it, right? Patent that unique thing!

I create a power-up that makes the entire screen turn upside-down. Is that really going to be considered patentable?

Myth 3:
This argument says that while a patent might take a long time, you can get provisional rights, giving your application power even if your patent isn’t approved yet. Also, there is this quote:

Additionally, this may be another example of selling yourself short. Many inventions are broader in scope than the particular embodiment first produced by the inventor, and a good patent attorney can help an inventor identify the true, full scope of the idea that has been invented.

No, a good patent attorney can help an inventor identify the wording to make an otherwise specific “invention” cover a broad range of other “inventions”. You can patent “a mechanism for keeping point totals in order” and now you control the Top 10 List, but if you patent “a mechanism for displaying data in an arbitrary order” you have now patented not only the Top 10 List, but also end-game statistics for all kinds of games. Essentially, the author here is trying to convince you that there is a lot of money to be made by making your “invention” as broad as possible to cover as many possibilities as possible.

Myth 4:
Suing is expensive. The author ignores that point by arguing that patents are used for more than simply suing. Fine. But this line:

A patent portfolio is also a good defensive tool. Competitors, who will no doubt take advantage of the patent process for themselves, will think twice about suing you if there’s a threat of you suing them back (i.e., a countersuit).

Yeah, I’m sorry. No. If IBM, Microsoft, or probably even EA decides to sue you, your single, measly patent isn’t going to do anything. These companies will likely claim that your patent is actually making use of one of their patents. Imagine coming into a water-balloon fight with a pack of balloons, and the opponent holds the only water hose to fill them. That’s what it is like. IBM has argued that its huge patent portfolio is a great set of assets not because they receive licensing revenue, but because IBM can write whatever software it wants. NO ONE can go to IBM and say, “Hey, you’ve infringed on my patent, so give me money!” because IBM will return with, “YOUR patent makes use of any number of the thousands of patents we have. You can go away now. Oh, and you’ll also let us license your patent at no real cost to us. Have a nice day.”

Myth 5:

The “spirit of innovation” works best when there is a free market of ideas, and consumers are better off if video games are not patented.A classic argument among those who feel that the entire patent system should be abolished. You might want to make that argument to your representative in Congress, because unless the Constitution is amended to do away with patents, they’re here to stay.

The quote above is one of the examples that really showed that this article wasn’t meant to be informative so much as to persuade through deceit. One, people aren’t arguing to abolish the entire patent system. People are arguing that certain types of patents, specifically software patents, shouldn’t exist. The second statement implies that the Constitution already mentions patents, when it doesn’t. The Constitution grants the power to create ways to reward people for progress, but doesn’t create any specific power, like copyright or patents.

The patent system changes. So does copyright. It isn’t a far stretch to think that some changes are better than others, and some changes are just plain bad. The ability to patent software is one such change.

In the last paragraph for this “myth buster”, he talks about Ralph Baer, who supposedly gets credit as the father of video games. Don’t most people believe that Nolan Bushnell did it first? In fact, the author mentions Pong, which is technically Bushnell’s game. Bushnell opted out of a patent infringement suit by Magnavox because Pong was based on Baer’s more complex Ping-Pong game. Other companies lost lawsuits, and Magnavox made a lot of money. The author then mentions that Spacewar was created by Steve Russell.

Unfortunately for him, Russell did not seek patent protection on his concept, and did not document his development efforts as well as Baer. We will never know how history may have been rewritten had Russell sought patent protection on Spacewar. The moral of the story is simple: you should act to protect your inventions.

It sure sounds like it. Baer makes millions, and Russell failed. No, wait. Let’s remember who Russell was. A programmer at MIT. He made the first game that would be distributed with the computers being used at the time, which were mainframes. Trading programs wasn’t called piracy back then. It was called sharing. And you did so with tape, not disks. No one downloaded anything over p2p networks.

Russell was a student, and he hacked just for fun on the new DEC PDP-1. No one at the time thought to make money by selling software, let alone games. So Russell wasn’t trying to make money off of his game. Once again, the author is trying to convince you that software patents are great by offering up hints of ideas that you will hopefully turn into facts in your mind. I know the story, and so I knew that this comparison was horribly contrived and the language implied something that isn’t true. How many people know about Steve Russell and Spacewar? How many people reading this article would think that Russell “failed” with his game while Baer succeeded with “his” Pong?

If that specific paragraph in the author’s article doesn’t convince you that this author is trying to sell you something, I don’t know what will.

Myth 6:
Patents are expensive. The research prior to filing may be cheaper than ever, but the filing of a patent costs serious money. Maybe EA can afford to pay the thousands just to patent games, but indie developer budgets can easily double or triple due to filing costs. Don’t forget that if you have to sue or defend yourself, your lawyers will cost money too. Not everyone will make millions by suing people who make card games.

In the end:

Video game innovations will play a large role in determining who shares in the ever-growing multi-billion-dollar video game industry. As more and more companies enter the market, and spend more and more resources developing those innovations, protecting those innovations will become even more critical.

Whoa, whoa, whoa! Back up a bit here. If the Constitution grants the power to create things like copyright and patent laws to promote innovation, and more companies are entering the market and creating things, do we need MORE protection? Doesn’t this just contradict everything the author himself was saying? Patents allow for progress. There is more progress. Therefore, we need to “protect” progress? From who or what are we protecting our “inventions”? The author doesn’t say. The implication, of course, is that other people will take your “invention” and start making money from it, and you need to protect yourself.

We don’t need software patents to make software. Software patents don’t promote progress. They stifle it. Most software patents are being used defensively. Microsoft, IBM, and others trade licenses, and no real lawsuit gets completed anymore. “You can make use of our XOR patent if we get the right to use your patent on computer animation with color.” Not everyone is Microsoft or IBM, and so not everyone would benefit from software patents. The only real reason given in the article is to do it because everyone else is doing it. Get them before they get you.

Software innovation happens in spite of software patents, not because of it. If everyone who wrote software had to do a lengthy patent search before writing code or releasing projects, how many projects would be dead due to IBM alone? As the author explains, ANYTHING can be patented, so it isn’t like software patents are documenting actual inventions.

Software patents don’t protect anyone but large companies. They are expensive. They cover ideas, algorithms, and mathematics when patents are supposed to cover actual inventions. And even more important, the author was clearly trying to deceive rather than provide actual information. Can someone give REAL arguments for software patents? It doesn’t seem so. Most arguments “for software patents” tend to sidestep the issue and claim that patents are doing what they always do. Such arguments ignore the fact that software development is not like building vehicles, and they ignore the actual question: should software patents exist?

I believe they shouldn’t.

Some links:
League for Programming Freedom
Paper arguing that software patents would actually reduce innovation and progress (PDF format)

2 comments to Software Patents? No Thanks!

  • james

    I saw that you have a page that discusses patent-related resources at http://gbgames.com/blog/index.php?p=62. I wanted to suggest adding http://www.freepatentsonline.com to the page. This web site has free PDF downloading (instead of having to page through TIFFs like at the US PTO). It is by far the best free patent searching site.

  • James, I note that you have posted a word-for-word comment on other blogs, but I’ve decided that it isn’t spam.

    My only problem with the site is that knowing about patents actually makes it worse for the person who accidentally infringes on one.

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