Patents are not necessary for innovation

Written by Venkatesh Hariharan | Updated: Aug 12 2008, 02:49am hrs
The objective of the patent system is to encourage innovation. Therefore, the question is whether patents are essential to promote innovation in the software industry The fact is that most of the far-reaching innovations in the software industry happened well before software patents became common. Word processors, spreadsheets, databases, compilers, email, the world wide web, the fundamentals of modern operating systems, the graphical user interface were all developed before software became a patentable commodity in some countries.

Another example of innovation is the Linux operating system, which runs on almost everything, from the Mars Rover, to giant supercomputers to the tiniest embedded computers. This innovation has been powered by the open source model, based on collaboration, community and the shared ownership of knowledge. Thousands of volunteers and private enterprises like Red Hat, IBM and others have contributed source code to Linux under the general public license (GPL) that gives users the freedom to modify the source code and share the resulting improvements with others.

It is estimated that the Linux kernel now has around 10 million lines of source code (the instructions that make a software program work). The commercial value of the source code in an average Linux distribution is estimated at around $8 billion. This represents an enormous wealth of knowledge that is freely available to everyone. The success of open source is clear proof that patents are not necessary for innovation in the software industry and that profit motives are not the only spur for innovation.

Having established that, let us now look at the negative impact of software patents. To do that, we need to take a slight detour into the copyright law. Any person or organisation writing software automatically enjoys protection under the copyright law. If anybody steals source code, they are liable for prosecution under the copyright laws.

However, if anybody wrote source code that ends up being similar to another persons, they can defend themselves by proving that they wrote the code independently. If software patents are allowed, this independent invention argument cannot be used as a legal defense. This is because the first person who obtains the patent then has exclusive rights over the idea. While copyright protects the expression of an idea, a patent is a state granted monopoly on the idea itself. We feel that copyrights are sufficient to protect software, while patents are a treacherous landmine that will increase litigation and hinder innovation in a rapidly growing industry.

It is estimated that around 2,00,000 software patents have been granted in the US and the task of sifting through these patents is so difficult that most companies dont even attempt this task. The language of software patents is so complex that only the most masochistic software developer would spend their time reading patents.

In online shopping alone, there are more than 4,000 patents. This leaves both developers and web portals and any company that implements online shopping liable for infringement. India gave the world the profound concept of zero and the decimal system, which forms the foundation of the digital revolution. Imagine what would have happened to the IT industry if India owned the patents for these ideas! Our knowledge traditions have always held that knowledge grows by sharing and diminishes when it is held secret. Therefore, it is distressing to see our policies being cut and paste from other societies that treat knowledge as something that can be commoditised. If we want a renaissance of the great knowledge traditions of India, we must stop aping the developed economies and their thought processes. Nixing software patents in the bud would be a pretty good start.

The writer is corporate affairs director with Red Hat