Michael Kay
CEO of Saxonica

I am a software professional running my own startup company, selling an innovative software product. Software patents are the biggest risk to my business - such a big risk that no insurance company will offer me cover.

The US-based software industry is lobbying hard in favour of software patenting. However, the US experience over the last few years is a disaster: the only beneficiaries are (a) lawyers, (b) companies that have failed to sell their products successfully, and resort to exploiting their patent portfolio as a last resort, and (c) large software companies who feel threatened by small innovative competitors. In the longer term the main beneficiary will be the software industry in Asia, which is unfettered by such anti-competitive legislation.

There are several reasons why software patenting is undesirable:

(1) all programming is innovative: if you weren't doing something a little bit different from what others had done, you wouldn't be doing it. The US Patent Office is not demanding that software should represent any kind of radical breakthrough to be patented: almost any non-trivial piece of code qualifies. This is similar to allowing patenting of musical compositions; if it were allowed, then 95% of all new music would be violating some existing patent. This is indeed close to being the situation in the software world.

(2) software ideas are much more abstract that ideas in other fields of engineering. It is impossible in many cases to decide whether two ideas, expressed in different technical vocabulary, are equivalent or not. Certainly the courts, with their limited technical expertise, are incapable of doing so.

(3) the most important new ideas in software are like scientific discoveries: when the time is right, many people tend to discover them simultaneously and independently. It is not in the public interest that one of these individuals (or more likely their employers) should be given a 25-year monopoly on the idea.

(4) the best innovation comes from small companies, and small companies cannot afford the costs of playing the patent game. Software is by its nature a somewhat monopolistic industry, because of the tendency of the user community to standardize around common products. Allowing software patents only increases this tendency.

I have no quarrel with software copyright law (though it could be improved). You can't infringe someone's copyright unintentionally. With patents, every professional programmer is infringing dozens of US patents unknowingly every single day.