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Blocking innovation and research

Software patents block innovation and research. This is in addition to the decades of proof that software progress happens without patents.


This has been summed up by Lord Justice Jacob in the 2006 UK ruling Aerotel v. Telco:[reference needed]

The patent system is there to provide a research and investment incentive but it has a price. That price (what economists call “transaction costs”) is paid in a host of ways: the costs of patenting, the impediment to competition, the compliance cost of ensuring non-infringement, the cost of uncertainty, litigation costs and so on. There is, so far as we know, no really hard empirical data showing that the liberalisation of what is patentable in the USA has resulted in a greater rate of innovation or investment in the excluded categories. Innovation in computer programs, for instance, proceeded at an immense speed for years before anyone thought of granting patents for them as such. There is evidence, in the shape of the mass of US litigation about the excluded categories, that they have produced much uncertainty. If the encouragement of patenting and of patent litigation as industries in themselves were a purpose of the patent system, then the case for construing the categories narrowly (and indeed for removing them) is made out. But not otherwise.


Main article: Studies on economics and innovation

We find evidence that software patents substitute for R&D at the firm level; they are associated with lower R&D intensity [...]


When explaining why Google was not supporting the patent-free Ogg Theora codec, Chris DiBona replied:[1]

[...] here's the challenge: Can Theora move forward without infringing on the other video compression patents?

Most software innovation happens through leap-frogging: company A comes up with an idea, company B replicates it with extra features or improvements, company A improves it further. This process is in the interests of innovation and in the interests of the consumer. It expands the market, and very often both A and B benefit from it. Patenting can only slow this process down, to the detriment of the consumer, the market, and the companies who supply that market.[reference needed]

Very often the first company with an idea doesn't get it quite right, or fails to realise its true potential. Their product fails because they execute it badly or market it badly. Another company then builds on the idea and succeeds where the first company failed. For example, the Wang object technology patents, acquired by Kodak after Wang failed, versus Sun Should the patent system reward failure?[reference needed]

See also


  1. DiBona Chris, H.264-in-<video> vs plugin APIs[archived],, 2009-06-13.

External links

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Why abolish software patents
Why abolish software patents Why focus only on software · Why software is different · Software patent quality worse than all other fields · Harm caused by all types of patents
Legal arguments Software is math · Software is too abstract · Software does not make a computer a new machine · Harming freedom of expression · Blocking useful freedoms
High costs Costly legal costs · Cost of the patent system to governments · Cost barrier to market entry · Cost of defending yourself against patent litigation
Impact on society Restricting freedom Harm without litigation or direct threats · Free software projects harmed by software patents · More than patent trolls · More than innovation · Slow process creates uncertainty
Preventing progress Software relies on incremental development · Software progress happens without patents · Reducing innovation and research · Software development is low risk · Reducing job security · Harming education · Harming standards and compatibility
Disrupting the economy Used for sabotage · Controlling entire markets · Breaking common software distribution models · Blocking competing software · Harming smaller businesses · Harming all types of businesses · A bubble waiting to burst
Problems of the legal system Problems in law Clogging up the legal system · Disclosure is useless · Software patents are unreadable · Publishing information is made dangerous · Twenty year protection is too long
Problems in litigation Patent trolls · Patent ambush · Invalid patents remain unchallenged · Infringement is unavoidable · Inequality between small and large patent holders