Software Patents and the Hacker Ethic

Trash software patents

People who work in information technology are remarkably unified in their attitude towards software patents:  for the most part, they simply hate them.   There are a lot of good reasons to hate software patents, and not too many to like them.  Software is tremendously different from the kind of invention for which patent law was designed.  The Hacker Ethic simply disdains software patents.

The consequences of fitting the square peg of information technology into the round hole of patent law are endless lawsuits that cost companies millions or billions of dollars, and tend to ensure that no one company can make the best possible product, because there are always features that some other company has patented.

It's not surprising, then, that a lot of technical people, in particular, want nothing to do with software patents.  They prefer to keep their hands clean by simply avoiding the issue, but unfortunately there is no guarantee that they will be able to do so.  Ultimately, if another company sues you alleging a patent violation, you need to craft a legal strategy in response.  The only likely effect of a previous posture of purity will be that you are utterly unprepared to react defensively.

I believe, with the most radical of hackers, that software patents should be done away with.  But I work in an industry where they are ever more important, and I have a responsibility to my investors, not to mention my colleagues, to be as prepared as possible for any eventuality.  Competing in the software industry without a patent strategy is like walking onto a battlefield with neither body armor nor a weapon.  An intelligent pacifist stays off the battlefield, and a conscientious objector to software patents would do well not to be a decision-maker in the IT industry.

Consider the current epic battle between Apple and Google and its allies.  I know that a large number of programmers at Apple are embarrassed by their company's aggressive use of patents, and that Google programmers regard the whole thing as an abomination.  But as long as the battle is going on, refusing to help advance the company's patent strategy would be viewed as tantamount to treason.

Employees of such large companies know that they're trapped in the system, because their employers make their obligations perfectly clear.  Independent IT professionals, as well as employees of many small companies, have more of an option, and can choose to boycott the whole process.  But they're fooling themselves if they think that they've avoided being trapped in the system.  They're just as trapped, but with a different role to play -- they're the foolish unarmed civilians sitting around undefended, hoping the battle doesn't come to them.

As much as I despise the current patent system, I see very little hope that it wll be substantially reformed any time soon.  That means that, for the foreseeable future, my company -- like nearly all others -- runs the constant risk of being sued over a software patent which, no matter how bogus, is presumed valid by the law and which can only be overturned with millions of dollars of litigation.

Because the best defense is a good offense, I believe that all small software companies should begin to amass a patent portfolio of their own.  If it's used offensively, to my mind, that's a violation of the Hacker Ethic and of the ethics of most programmers.  But if it's used defensively -- in retaliation when you've been sued -- it's simple self-defense.  Those who absolutely refuse to play the patent game, while competing in the software industry, have their heads in the sand, and are doing a poor job of fulfilling the trust of their investors.