How and why our intellectual properties became ludicrous

Most software engineers agree that the current laws covering intellectual property rights in our business are a disaster and impossible to implement. However, we should remember that nobody ever set out to design the system this way, it just evolved based upon a different environment which existed when the laws were being drafted.

To understand our current laws we must look back to Shakespeare’s time. Back then there were very few laws that protected the creative works done by William Shakespeare and his contemporaries. As a result they had very little financial security and had to rely upon the generosity of patrons.

It was of great benefit to the English language that subsequent authors felt free to re-use passages of Shakespeare's work with out fear of litigation from his heirs. However, most people felt it was wrong that he was not getting financial recompense from his creative output and so a series of copyright laws were enacted. These laws evolved over time, but they all maintain the principle that the author retains rights to control anything they create for a limited time after which the work reverts to the public domain.

As well as protecting publications, many countries felt that they needed a legal protection for inventors. One of the big differences between inventions and creative works is the fact that there is no inherent reason for inventors to publish details of their inventions. The initial patent laws granted inventors total control of their inventions for a period of 10 years in return for the inventors publishing a detailed description of their invention that others could follow after the protection period expired.

The basic idea behind patents has still been retained in modern laws, but the main area of change has been in relation to the length of the protective period. Currently patents last for 20 years, but there has been much debate about this in relation to medicines.

• On the one hand, 20 years probably provides enough protection to allow the original inventors make a decent return on their investment.
• On the other hand, it seems reasonable that 20 years after the invention, the consumers should benefit by having market opened up to competitors (who presumably would sell the medications at cheaper prices).

However the speed of innovation in the software industry is much faster than in the pharmaceutical industry. A 20 year exclusive right to implement an invention is a long time on the internet. In fact things move so fast in the software industry that parallel teams are coming up with similar ideas while the original invention disclosures are still being evaluated by the patent office. As a result companies find that they are accidentally infringing upon patents that they had no way of finding out had been already filed. There are many examples of patent trolls who try to make money by extorting money out of technology companies rather than by implementing any technology themselves. This practice has much in common with Mafia protection rackets and needs to be stamped out whenever possible.

The copyright system works pretty well for the software industry because software programs are similar in many ways to books.  Nobody begrudges commercial companies the chance to control the programs that they have developed at huge cost. However, the patenting system is not working as well.

NB - I should emphasise that what I have written here is my own personal opinion and not the opinion of my employer IBM. IBM's position is that they are currently the most prolific user of the patenting system, but they are also actively campaigning for reform of the system.