Should you patent software?

April 2009 - I’m of the belief that patents don't matter in software. Why? First of all, a patent by definition is exclusive rights to an idea or invention if, and only if, you fully explain how the idea or invention works and publicly disclose it. In software there are a million ways to solve the same problem. Why disclose something to the public and allow them to see how your idea works when they could simply take that idea and implement it in a different way?

Yes, the patent protects the idea or invention - rather than the specific implementation - however, try litigating something that looks and smells different, yet solves the same problem. That is, I think you'd have a hard time litigating parallel products, one written in Java and the other in .NET. You'd only win after five years of court and millions of dollars in court fees. And by that time, the idea or invention would be outdated. Which brings me to my second point.

Software is so dynamic, most technologies become extinct before their patent (usually 20 years) runs out. Gopher, a textual interface to the Web before the Web, started in 1991. What if it had a patent (maybe it did)? You mean to say I can't create a text based internet protocol that works well on green screens until 2011? Damn. I guess I'll have to wait until the patent runs out before I can develop a similar technology. Or, just use today's Web 2.0. Hum?

A better way to protect software is to copyright. A copyright protects you from users coping and pasting your software. You have it for 100 years (or something like that). Or, even better yet, if you have a sensitive software package, copyright it and then don't disclose it (just put the funny © symbol on it). Do what Coke does and lock the secret formula up in a vault.