Even when patents are known in advance, software publishers have generally not licensed the algorithms or techniques; instead, they try to rewrite their programs to avoid using the particular procedure that the patent describes. Sometimes this isn't possible, in which case companies have often chosen to avoid implementing new features altogether. It seems clear from the evidence of the last few years that software patents are actually preventing the adoption of new technology, rather than encouraging it.
And they don't seem to be encouraging innovation, either. Software patents pose a special danger to small companies, which often form the vanguard of software development but can't afford the cost of patent searches or litigation. The programming of a new product can cost a few hundred thousand dollars; the cost of a patent search for each technique and combination of techniques that the new program uses could easily equal or even exceed that. And the cost of a single patent suit can be more than a million dollars.
``I'm not familiar with any type of ligation that is any more costly than patent litigation,'' says R. Duff Thompson, vice president and general counsel of the WordPerfect Corporation. But Thompson's greatest fear is that software patents will wipe out young, independent programmers, who until now have been the software industry's source of inspiration. Imagine what happens, says Thompson, when ``some 23-year-old kid who has a terrific idea in a piece of software is hammered by a demand letter from someone holding a patent.''
As for aiding the exchange of information, the expansion of software patents could mean instead the end of software developed at universities and distributed without charge--software that has been a mainstay of computer users in universities, corporations, and government for years. Many such programs--the X Window system, the Emacs text editor, the ``compress'' file-compression utility, and others--appear to be in violation of existing patents. Patents could also mean an end to public-domain software, which has played an important part in making computers affordable to public schools. There is obviously no way that an author who distributes a program for free could arrange to pay for royalties if one of the hundreds of techniques that were combined to create the program happens to be patented.
Few programmers and entrepreneurs believe that patents are necessary for their profession. Instead, the impetus for patents on algorithms and techniques comes from two outside sources: managers of large companies, who see patents as a means for triumphing over their competitors without having to develop superior products, and patent attorneys, who see the potential for greatly expanding their business.
Today, most patenting by companies is done to have something to trade or as a defense against other patent-infringement suits. Attorneys advise that patenting software may strengthen competitive position. Although this approach will work for large companies such as Microsoft, Apple, and IBM, small and even mid-sized companies can't play in their league. A future startup will be forced to pay whatever price the giants choose to impose.