The arguments about software patents in the 1970s and 1990s were theoretical. Opponents predicted that software patents would have a detrimental impact on software innovation. But the concept was so new that they couldn’t know for certain.
Now the evidence is in. Today IBM, Oracle, and Adobe all have thousands of software patents, and unsurprisingly they’re no longer opposed to software patents. But software patents have had all the negative effects they anticipated: Innovative companies have been forced to divert resources from hiring engineers to hiring patent lawyers. Large companies no longer on the cutting edge have been using broad patents to demand cash from small, more innovative companies. Many programmers and software entrepreneurs view patents as more a nuisance than a reward for innovation.
The Supreme Court could well settle the matter this spring. The question is, will it draw more inspiration from IBM’s 2014 brief making the case for software patents — or from IBM’s 1972 brief opposing them?
I think the whole thing is fascinating, and am looking forward to seeing how the court rules.