I spend a lot of time on this blog criticizing patent lawyers, so I'm pleased to have the chance to plug this really insightful post by patent attorney Steve Lundberg. He notes that patents on software are a subject of perennial controversy—more than other patent categories—and argues that this has less to do with the nature of software than with the nature of the software industry. The low costs of software production mean that there are vastly more firms producing software than produce any other category of patentable invention. While hiring a patent attorney is a trivial cost for a pharmaceutical or automotive firm, it's a huge expense for a 4-person software startup.
I agree with him that this is an important reason (I wrote a paper making a similar point), but the best part about Lundberg's post is his final paragraph:
Because a single person can successfully develop and distribute software applications, the experience with the system is highly personalized for a large number of developers. Software patents, in a sense, and almost unlike all other technology areas, restrict what feels like our treasured personal freedom, and understandably thus generate a visceral reaction to those so affected. In almost all other mainstream industries, inventors do not act as manufacturers, but are employed by them. This decouples and depersonalizes infringement concerns from the inventor/developer. In actual practice, it is extremely rare that a small developer would ever be sued for infringement by any entity other than a direct competitor. In this instance, the developer would be able to quite easily see it coming, but there is a possibility that they could be sued and not see it coming. So, I can understand why smaller developers would feel personally threatened by software patents. And even software developers in large companies often still fancy themselves as independent souls who, in their dreams, find fame and fortune founding a start-up and striking it rich. So, they too, often can take umbrage as much as an independent developer.
I think this is exactly right, with one quibble: the part about patents restricting "what feels like" freedom. There's no "feels like" about it. Patents are a restriction on the treasured personal freedom of programmers, which is why so many of us are upset about them.
I think Lundberg underestimates how common it is for ever small software producers to be hit with patent lawsuits. But I also think it's ultimately irrelevant. The fact that not very many peoples' freedom is being limited isn't an argument in favor of a limit on freedom. Software patents are clearly a restriction of freedom for anyone who is threatened with a patent lawsuit. That's wrong whether such threats are made against 1 percent of software developers or 99 percent.
