(Patently) Right

Paul Graham is a master stylist - indeed, one of the best writers on technology around. Reading his latest essay, "Are Software Patents Evil?" is like floating in linguistic cream. And that's the problem. His prose is so seductive that it is too easy to be hypnotised by his gently-rhythmic cadences, too pleasurable to be lulled into a complaisant state, until you find yourself nodding mechanically in agreement - even with ideas that are, alas, fundamentally wrong.

Take his point in this recent essay about algorithms, where he tries to argue that software patents are OK, even when they are essentially algorithms, because hardware is really only an instantiation of an algorithm.

If you allow patents on algorithms, you block anyone from using what is just a mathematical technique. If you allow patents on algorithms of any kind, then you can patent mathematics and its representations of physics (what we loosely call the Laws of Physics are in fact just algorithms for calculating reality).

But let's look at the objection he raises, that hardware is really just an algorithm made physical. Maybe they are; but the point is you have to work out how to make that algorithm physical - and that's what the patent is for, not for the algorithm itself. Note that such a patent does not block anyone else from coming up with different physical manifestations of it. They are simply stopped from copying your particular idea.

It's instructive to look at another area where patents are being hugely abused: in the field of genes. Thanks to a ruling in 1980 that DNA could be patented, there has been a flood of completely insane patent applications, some of which have been granted (mostly in the US, of course). Generally, these concern genes - DNA that codes for particular proteins. The argument is that these proteins do useful things, so the DNA that codes for them can therefore be patented.

The problem is that there is no way of coming up with an alternative to that gene: it is "the" gene for some particular biological function. So the patent on it blocks everyone using that genomic information, for whatever purpose. What should be patentable - because, let me be clear here, patents do serve a useful purpose when granted appropriately - is the particular use of the protein - not the DNA - the physical instantiation of what is effectively a genomic algorithm.

Allowing patents on a particular industrial use for a protein - not a patent on its function in nature - leaves the door open for others to find other chemicals that can do the same job for the industrial application. It also leaves the DNA as information/algorithm, outside the realm of patents.

This test of whether a patent allows alternative implementations of the underlying idea can be applied fruitfully to the equally-vexed questions of business methods. Amazon's famous "one-click" method of online making purchases is clearly total codswallop as a patent. It is a patent on an idea, and blocks everyone else from implementing that (obvious) idea.

The same can be said about an earlier patent that Oracle applied for, which apparently involved the conversion of one markup language into another. As any programmer will tell you, this is essentially trivial, in the mathematical sense that you can define a set of rules - an algorithm - and the whole drops out automatically. And if you apply the test above - does it block other implementations? - this clearly does, since if such a patent were granted, it would stop everyone else coming up with algorithms for conversions. Worse, there would be no other way to do it, since the process is simply a restatement of the problem.

I was heartened to see that a blog posting on this case by John Lambert, a lawyer specialising in intellectual property, called forth a whole series of comments that explored the ideas I've sketched out above. I urge you to read it. What's striking is that the posts - rather like this one - are lacking the polish and poise of Graham's writing, but they more than make up for it in the passion they display, and the fact that they are (patently) right.