Innovation: The Impossible Dream?

Not if we fight hard against software patents.

Yes, it is true. I sometimes grow weary of constantly battling the evil giants that threaten the fair land of Technology. It seems that no matter how fiercely I charge them and how deeply I thrust with my lance, the giants continue on as if nothing had happened.

Some might even say that I am only tilting at windmills—that the forces I battle are too deeply entrenched and too strong to be defeated. But, still, I must fight on.

I am emboldened by some of the positive effects I have seen from the battles that I and other knights who defend Technology have waged. The giant known as Broadcast Flag was gravely wounded recently on the legal field of battle, and some of the smaller giants of bad technology legislation have been driven from the field (although the fearsome giant DMCA still ravages the land).

/zimages/3/28571.gifClick here to read Government Industry Center columnist Chris Nolans take on the broadcast flag ruling.

The evil that I find myself battling against most often now is the mighty and near-invulnerable beasts called Software Patents. No other giants have done as much to slow progress in the land of Technology or are as much of a threat to the fair lady Innovation.

Those who remember my previous battles will recall that Software Patents are evil because they are granted too easily for things that are either totally obvious or unoriginal "inventions." Software Patents also are used too often as a weapon to attack Innovation rather than as a shield to protect her.

But, to me, the greatest affront is the mere existence of Software Patents. I think they should take the shape of Copyright, the proper and sensible method of protecting software programs and applications. I say this because software is more akin to books, movies and music than it is to physical-device inventions, for which patents were originally designed.

Imagine what books or movies would look like if they used the same patent system as software. Imagine Herman Melville patenting the concepts, themes and metaphors of "Moby Dick" or Cervantes patenting those in "Don Quixote." Then imagine that neither author even bothers to write his book and is just patenting his ideas to make money off writers who actually have the drive to do the writing.

This might seem absurd, but its exactly how software patents work. In fact, one could make the argument that its more beneficial to make money off a patented idea than it is to put that idea into action by coding the software.

Luckily, I may have gained an unlikely and unwitting ally in my battle against Software Patents. Two intellectual property lawyers recently wrote an article and started a blog promoting the concept of patents in video games. The lawyers point out the surprising lack of patents in video games and say that companies would be smart to take advantage of the situation.

This is interesting to me because patents becoming common in games could be just the thing that points out the stupidity of software patents in general. It is sometimes hard to argue that the code in an application server is just like art. But if companies start patenting game-play elements—including plot points, themes and character development—the comparison will be a lot more obvious.

Given the track record of the U.S. patent office, it will be only a matter of time before game developers get patents on things such as "killing virtual creature when virtual creature is shot with virtual bullet" or "winning when opponents forces are defeated." This may prove to be just the thing to remove the illusion that gives Software Patents power.

But I cannot fight this battle by myself. I call on all my fellow Defenders of Technology to take up arms against these fierce giants. Use the weapons of contacting government representatives and media outlets to point out the injustices of Software Patents. I make a special plea to those in Europe to take up this fight and prevent Software Patents from invading their land, where a victory against this evil could turn the tide for all of us.

But enough talk. The time for words is past; now is the time for action. Sancho, give to me my trusty lance, Tech Directions. Giants are threatening the fair Innovation. Charge!

Labs Director Jim Rapoza can be reached at