Antonin Scalia in 2010.

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Last weekend I was thrilled to hear one of my favorite radio programs, This American Life, take up the issue of software patents. Computer programmers have been sounding the alarm about this problem for two decades, and it's great to see mainstream media outlets finally start to give the issue the kind of attention it deserves. TAL devoted a full hour to the subject, focusing on Intellectual Ventures (which I've written about at length) and did an absolutely spectacular job.

This American Life's story-telling format makes it great for describing a problem, but it didn't spend any time discussing potential solutions. So in this post I hope to fill in the gap by describing what I believe to be the best solution and how we ought to get there.

In my view, the solution is straightforward: software shouldn't be eligible for patent protection. That might sound simplistic, but there are good reasons to think abolition of software patents is the right reform. Software is fundamentally different than other types of inventions. For starters, software is virtually alone in being eligible for both patent and copyright protection. This makes patent protection mostly superfluous. Second, writing software is an individual, expressive activity at least as much as it is an engineering discipline. We don't expect novelists to hire patent lawyers, and computer programmers shouldn't have to either. Finally, the "software industry" is radically more diffuse and diverse than the typical patent-eligible industry. Every business with more than a handful of employees has an IT department producing potentially patent-infringing software. No other category of patents has this characteristic.

Unfortunately, as Matt Yglesias points out, the patent reform legislation now working its way through Congress is woefully inadequate. I'd love to think that a wave of negative publicity for software patents would produce better legislation, but that's not realistic. At this point, software patents simply benefit too many entrenched interests to expect Congress to enact serious reforms.

That means that the best hope for reform lies with the courts. The Supreme Court said three times that mathematical algorithms (a.k.a. "software") are not eligible for patent protection. Unfortunately, the last of these decisions was three decades ago, and it was muddled enough to allow lower courts to gradually make software patents easier to get.

But in principle, those old Supreme Court decisions are still good law, even if lower courts have gotten in the habit of ignoring them. The Supreme Court just needs to say they really meant it. Indeed, many software patent critics hoped that last year's Bilski v. Kappos case would be a first step in that direction. The case focused on "business method" patents, which was legalized in the same 1998 decision that decisively legalized software patents. But the Bilski case wound up being a 5-4 nail-biter, with a conservative majority striking down the particular business method patent in the case but refusing to rule out business method patents in general.

There is strong circumstantial evidence that Justice Scalia was (uncharacteristically) the swing vote, and that he is deeply ambivalent about business method and software patents. In his majority opinion, Justice Kennedy worried that invalidating business method patents would "create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals." That would be a pretty depressing read for software patent opponents like me except that Scalia pointedly declined to join this part of the majority opinion. With only four votes, that part of the opinion isn't binding precedent. And this isn't the first hint that Scalia has doubts about software's patentability.

Justice Stevens wrote an impassioned dissent calling for business method patents to be invalidated. Stevens retired shortly afterwards (see my tribute), but his dissent was signed by the three other liberals still on the court. We don't know what Justice Kagan thinks, but it seems likely that she would have sided with her fellow liberals. Four liberals plus Justice Scalia would be a majority.


But the Supreme Court won't take such a dramatic step unless there is a broad consensus that patents are detrimental to software innovation. And this is why it's so valuable to have mainstream programs like This American Life covering the issue. Justice Kennedy was obviously unaware that most computer programmers consider patents an impediment to their work. Only if this fact becomes common knowledge, in the way that everyone knows doctors hate malpractice lawsuits, will we have any hope of the Supreme Court—and specifically Justice Scalia—doing the right thing.