Before 1990, people weren't suing each other over software patents. And the software industry did just fine - it was a period of huge innovation and rapid progress. We know what the software development landscape looks like both with and without patents.
It might not have been the booming industry it is today but patent trolls existed in the 80s, too. Here's John Walker, one of the founders of AutoDesk, writing in 1993:
“Ever since Autodesk had to pay $25,000 to ``license'' a patent which claimed the invention of XOR-draw for screen cursors (the patent was filed years after everybody in computer graphics was already using that trick), at the risk of delaying or cancelling our Initial Public Offering in 1985, I've been convinced that software patents are not only a terrible idea, but one of the principal threats to the software industry.”
I believe the XOR patent was the first major one, and certainly the most blatant troll – it hit most of the industry for a technique which had been described a decade before filing – but the software patent mess started arguably in 1981. Wikipedia has timeline of the evolving caselaw:
Right, those were copyright claims, not patent claims. Apple also sued Microsoft over look & feel, again a copyright claim.
Ironically, Lotus 123 was more or less a clone of VisiCalc's ideas. Lotus 123 would never have been able to exist if software patents had been there at the time.
Those were copyright claims, true, but that doesn't change the fact that companies still sought to protect what they felt were their innovations. There were many other cases involving many other companies, such as Sega vs Accolade. The only thing that has changed is companies have realized patents are a better means to that end because copyright does not, in their eyes, afford sufficient protection.
>Lotus 123 would never have been able to exist if software patents had been there at the time.
It's impossible to say that without considering what patents they'd have been able to secure in the first place, and even then it's almost certain they'd have existed. Software patents exist today and there is no shortage of clones in the market, even for products that had been heavily patented.
> The only thing that has changed is companies have realized patents are a better means to that end because copyright does not, in their eyes, afford sufficient protection
No, what changed was that the Federal Circuit invented software patents.[1]
You make it sound like companies woke up one day and realized that patents on software and business methods were a way better idea than everything they had tried before. What actually happened was that the few software and business method patents that were granted were never upheld. Until the Federal Circuit was founded.
The economic rationale for patents just isn't as strong when applied to software. Patents exist to protect capital intensive R&D from free riding. Software designs are just not very capital intensive. Plus, software has a layer of protection on the basis of copyrights. And that state of affairs manifests itself in the empirical observation: software worked find before widespread software patents.
The real problem is that the Patent Act isn't formulated in terms of the economic rationale for patent protection (it predates much of that economic theory). Thus, its hard to draw legal lines using the language of the patent act that are obvious when expressed in the language of economics. And now that the legal mechanics of patent protection are becoming unmoored from the economic underpinnings, the schism is noticeable to everyone. Note that in fields where there isn't this gap between law and economics (fields where R&D is very capital intensive), there isn't this same feeling among practicing engineers that patents are a problem.
Probably one of the most pernicious aspects of software patents is anyone writing code has no idea if they are violating patents or not. Like the old Roman practice of decimation, you can be randomly destroyed and there's nothing you can do to protect yourself against it.
Yes exactly, that is just an indication that the patent trolls hadn't completely caught up to the industry in 1990. People have been doing patent trolling for a long, long, loooong time. Like in the 19th century, you had patent trolls suing ranchers over using barbed wire that they supposedly patented. It'll take awhile before the law catches up and stomps out the craziness going on now.
It looks much better without.