An Alternative History of Software Patents

Consider the Patent. Consider the Copyright.

These are the two that we talk about when it comes to software. Yet we always seem to neglect something that is inherent in proprietary software - in 'closed source'.

Now, consider the Trade Secret:

A proprietary software company can profit from it's investment of intellectual capital with a trade secret. It protects this trade secret by simply not disclosing the source code. The Copyright of the source code in such a case is mainly to keep employees from running off and starting their own businesses that compete with the initial business. That's where non-disclosure agreements and non-compete agreements come into play when a proprietary software developer gets hired.

Non-disclosure agreements are really for Trade Secrets. Copyrights assure that the same code isn't used in a competing product - or they were, anyway. And patents... well, patents on software are a new way to make money.

You see, if I patent something that I held as a trade secret, then it means that I do not trust my employees to honor non-disclosure agreements. After all, we're talking about proprietary software - the code itself is a trade secret when you really think about it.

What caused this change? Well, some guy in M.I.T.'s AI Lab got a little squirrely when he couldn't get the source code for a printer. Maybe a few other people got squirrely too, but this guy took it dead serious. And when he did that 20 years ago, proprietary software companies didn't pay too much attention. Then this other guy - a college kid - writes a kernel< for all the stray GNU code lieing about. So this new operating system started, and evolved. And in a few years, it started to catch on. And then some guys figured out just in time how to run more than one web domain on a physical machine.

Suddenly, companies with copyrights and trade secrets were sort of forced to pay attention, because all this code was in the open. It was free to use, once certain obligations were met - obligations which are notably different than proprietary software, where "Don't ask, don't tell, don't pursue" were mouthed by a President who had inappropriate relationships. Revel in that irony.

So all of this code is out in the open, and copyrighted - a true use of copyright, like copyrighting text in a book instead of copyrighting text in a book that is locked.

What to do? All this code is being generated... and it's out there *gasp* in the open?! All of those things that used to be trade secrets in proprietary software companies were in danger. So the proprietary software leaders decided that they would open their code a bit, and call it sharing. That didn't work out too well. So they started digging around, banging on lawyer's doors and telling them that they had to protect the trade secrets! And maybe one imaginative, low level corporate attorney who wasn't focused on one aspect of the law started thinking about patenting. It's too ingenious to have come from a committee. So let's say that this attorney got to retire early, or got a partnership, or something. I don't know.

So in Patenting source code, the code is - OPEN - but competitors have to pay to use it. So the trade secret industry dies, and the patent industry takes off. So he who holds the most patents wins, and the large companies own the most patents - obviously - so they start shoving around their weight. Every trade secret they had, they were patenting as fast as they could because what was always a trade secret was now threatened by Copyright. On top of that, there were vagabond software developers floating from company to company.

Let's get this straight. Trade Secrets were threatened by Copyright, so the response was patents. And IBM probably saw that it might have trouble beating Microsoft at the patent game, so instead IBM decided to help drop the bottom out of the market and make a few friends along the way. Then again, maybe Big Blue's corporate team is really altruistic! Who knows.

Now if we really want examples against software patents, shouldn't we look more at the effects on the proprietary software industry? I'd love to know how many software patents that every company owns right now. It's like a stock market, and IBM just started what might crash that market. Then Poland stood up in Europe, and so forth.

The question I have is - what's next? It seems that we're more observers than participants.