What should we do with software patents? I’ve seen both sides of the debate, as I work a great deal in the context of standards bodies (particularly the IETF), where software patents have impeded progress on a community-driven (and/or community-usable) standard. On the other hand, I have been listed as a co-inventor on at least 40 software patents across more than twenty years of work, and have a number of software patents either filed or in the process of being filed.

The context of the question, of course, is the recent ruling by a United States Court of Appeals in a particular patent case. One particularly relevant statement from a concurring opinion (which means the judge writing the opinion agreed with the ruling, but not the reasoning the majority of the justices involved in the case used to reach their conclusion), is —

Software lies in the antechamber of patentable invention. Because generically-implemented software is an “idea” insufficiently linked to any defining physical structure other than a standard computer, it is a precursor to technology rather than technology itself…

(as quoted from http://fortune.com/2016/10/03/software-patents/)

There were, in fact, two different areas where the judges were concerned about software patents. The first was in relation to free speech rights, where the court argued that software patents impinge on the right to receive information and ideas by attempting to patent the ideas themselves. An argument against this might be that the patent doesn’t prevent the reception of the idea, only the implementation of the idea in a commercial product—but so far, this argument doesn’t seem to have been tested (or perhaps it has been rejected in some case I’m not aware of). The second is that most software patents do not, in fact, rise to the level of “nonobviousness” required of “real” patents.

At this point, software patents still stand in the United States. The reasoning of the primary and concurring opinion, however, is likely to be picked up by other courts, potentially reducing (or eliminating, over time) the enforceability of software patents. Since I’m not a legal scholar, I’m not going to comment on the overall likelihood of software patents becoming less than useful. Instead, what I’d like to think through is what the reaction of the network engineering world might be.

This could be either good or bad news for standards bodies, like the IETF. It will be good news if companies continue to innovate interoperable network protocols and standards without the “protection” of software patents. On the other hand, it will be bad news if this movement away from software patents is replaced by a strong movement towards trade secrets to protect perceived value. Combined with the current movement towards adding primary value through vertical integration through hyperconvergence, rather than the older model of adding value in conjunction with open standards, the lack of software patents could serve to fragment the market.

This will probably be bad news for network operators simply trying to understand the various vendor offerings, and to compare them directly. In the world of software patents, a company could protect new software with patents, and then freely explain to the world how they work. Of course, there was always a good bit of hype involved in the description, of course, but at least the description was generally “out there,” and available. If patent applications are generally struck down, companies will resort to stronger NDAs, and less than complete descriptions, to protect what they perceive as intellectual property.

Overall, the worst possible outcome would be potentially weaker standards bodies combined with more strongly vertically integrated, secretive vendors. The best possible outcome seems to be a more open environment, where ideas are shared, implemented, and improved on over time, with the primary source of innovation being in the implementation, rather than basic idea or process. This route could actually help the process of openness forward in many ways. It’s anyone’s guess what will really happen, but the best guess will always be some middle path between the two extremes; most likely, in this case, different segments of the network market will react in different ways.

But this is a movement that bears watching, and considering, as it will have a major impact on the way networks are built and managed in the coming years.