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"I'm convinced that the reform that's needed is a root-and-branch reform of the very concept of the patent," contends Simon Phipps (pictured) in his most recent Webmink blog posting (http://www.webmink.net/minkblog.htm). Today's software patents, he believes, breach the social contract on which the concept of a patent is based. SYS-CON reprints the blog entry in full here with the permission of the author.

Tim O'Reilly highlighted the Blackboard patent dispute yesterday, and has this comment:

"It's a great example of someone using clear and ordinary language to illustrate just how far patent filings have come from their original intent of instructing people about how a purported invention works, and how far they go to obscure by legal language the appropriate prior art."

This for me is the heart of the matter about software patents. The issue for me is not whether it should be possible to patent an invention that's implemented as software; the dividing line between software and hardware is becoming ever harder to discern, just look at OpenSPARC. The real issue is that today's software patents breach the social contract on which the concept of a patent is based.

The concept behind patents is that of protecting inventors against the copying of their ideas by others before they themselves have had the chance to benefit. Society does a deal with the inventor: "you give us the know-how, we'll protect you against copying long enough for you to profit." Both benefit. The know-how at large in society grows; the inventor profits. For it to be worthwhile for society to grant these "temporary monopolies", both sides of the deal have to be maintained.

I filed a few patents back when I was at IBM, and none of them seems to me to convey the know-how for a skilled programmer to be able to use the idea readily. They are patterns designed to help a patent attorney identify infringement. While the progress of the software industry's know-how was only being advanced by corporations, there was a (barely plausible) rationale for software patents; their lawyers could decode the patents. But now the individual developer acting in community is an equal source of progress, it is clear to me that the social contract is broken.

I'm not speaking for Sun on this issue, which is why this posting is on my personal blog, so that no-one can be mistaken about it (although everything I write over there is my own words too). But I'm convinced that the reform that's needed is a root-and-branch reform of the very concept of the patent, carried out in the light of the facts that the network is the computer and that open source is its soul.