When researching a paper on secure communications recently, I came across this interesting paper from the NSA. The paper is on the benefits of elliptic curve encryption technology, and argues that there are many advantages that elliptic curves have over the more traditional RSA public key encryption, such as shorter key lengths and less computational effort for the same level of security. However, as the paper notes:

Despite the many advantages of elliptic curves and despite the adoption of elliptic curves by many users, many vendors and academics view the intellectual property environment surrounding elliptic curves as a major roadblock to their implementation and use.

One company alone has 130 patents, and others also claim patents, so no wonder the industry has largely given elliptic curves a wide berth and stayed with the now out of patent RSA. One more example of how patents slow down technology adoption.

Why do we allow this to keep happening? It's not as if software patents reward those with the ideas. Very few new technologies are great leaps forward and patented algorithms are usually built on a substantial body of work that was already in the public domain. Slowing down innovation is not what patents should be about.

The most notorious example of the (legal) mis-use of patents was Unisys' LZW patent. This was for an initialisation vector for the public domain LZ78 loseless data compression algorithm. A useful contribution, but hardly rocket science. Without the preceding work, the patent would have never have been possible and the improvement itself was only a minor one.

The problem is that when Compuserve came along and defined the format for the GIF image file, they apparently thought that Unisys would not insist on royalties for their small improvement to LZ78 and included the LZW initialisation vector in their specification. GIF then became popular and, along with JPEG, became a popular image format for the World Wide Web. Then Unisys, will the full force of the law on their side, turned up to claim their royalties.

The classic patent Troll in action. Patent an idea, perhaps a small improvement over other people's ideas. Sit back and wait for someone else to put in all the hard work needed to get the product out there and make it a standard - and then cash in. All perfectly legal.

There is no absolute right to property, whether intellectual or otherwise. The concept of property only exists because it is useful to society. We allow land to be owned so that the farmer the puts in the work to raise the crops has the exclusive right to harvest them. Anything else would be inequitable and would make it pointless to farm. Without land ownership, either individual or collective, we are all hunter/gatherers.

We have copyright, because the author that puts in days, hours or weeks to write a book needs to be protected from unscrupulous publishers who would otherwise copy the result of all that work and seek to profit from someone else's activity. Again, without copyright the reward would go to those who profit from other's work rather than their own.

And, we also have patents, in order to recognise that those who put in years of research into understanding a technology and testing out various designs can publish their work, add to the total sum of human knowledge, and still earn a return on their investment. Again, steering profit to those who put in the effort.

But ideas are another matter. Anyone can have ideas and they rarely occur in isolation. Ideas are often built on other ideas, and the free exchange of ideas is needed to advance our society. Patents on ideas lead to the balkanisation of those ideas, as different players each patent a small part of a bigger idea. When someone makes that big idea a reality, the holders of patents on small parts of that idea all rush to claim their fee but without having contributing anything, or at most marginally, to its success.

Patents on ideas give the benefits to those who register the idea rather than those who put the work into making them work. The reverse of what intellectual property should be about. By failing to recognise that it is not the idea that is important, but the effort needed to bring the idea into reality that is important, they skew the playing field and stand in the way of investment rather than promoting it. Instead of "best practice" being quickly adopted throughout an industry a patent can stop it in its tracks.

Nowhere is the failure more obvious than when algorithms are patented. A program is the sum of hundreds perhaps thousands of algorithms. If each algorithm was subject to a separate patent then it would not be feasible to ever produce that program. Simply identifying each effective patent would take longer than writing the programPatently Wrong in the first, and as for the cost of licensing each one simultaneously... And how do you cope with the patent holders that see their patent as a way of protecting their market share.

Why should someone put all the effort necessary into writing a program, making it both useful and intuitive to use, and testing it, when non-contributors can take the profit?

And anyway, why can algorithms be treated as inventions? Algorithms are discovered not invented: a fact that should be obvious to any student of a Turing Machine.

I suppose the answer to why software patents have not been banned lies in the usual fact that patents on ideas benefit those with money. They can be used to protect market share and preserve monopoly positions. Accountants like them because some notional value can be placed on them to bulk up a balance sheet, and lawyers like them for the obvious reason. Who loses out? The answer is the consumer that is denied the innovative new products that patents keep out and the downward cost pressure that results from the break up of monopolies.

We in the West also lose out as patent law, when applied to ideas, works against start up companies, while those in the East are less bothered about the niceties of intellectual property law.

So why don't politicians do something about it and have a war on patents on ideas? I suppose the answer is they need campaign funds. Who provides these funds - see above.