The Problem With Patents


The lawyer’s response to people complaining about the thicket of software patents is that the system isn’t really that bad. A sloppy or ill-advised patent won’t ultimately hold up in court, and people who are doing nothing wrong can defend themselves in these suits. The software developer’s response to that is well phrased by Marco Arment:

It’s only “easier to defend a patent lawsuit” if you have infinite money to give lawyers, infinite time to deal with it, and an infinite tolerance for stress and uncertainty in the process. Most companies either don’t have the resources or conclude that it’s not cost-effective to reach the point of being able to reasonably argue about a patent suit’s validity, so in practice, targets threatened by patent litigation rarely have the chance to defend themselves.

One of the really great things about software is that, in principle, the capital costs of software development are quite low. Computers are cheap, and it’s perfectly possible for a single person to write a useful program. Barriers to entry are low, small firms can make meaningful contributions, and production of popular products can scale up very easily. Telling everyone they have to lawyer up to go into business wrecks all that.