Software Patents are Programmer’s Responsibility

The other day I read this in Dark Shikari’s blog (one of the developers of x264):

Most importantly, stop harassing the guy whose name is on the patent (Lars): he’s just a programmer, not the management or lawyers responsible for filing the patent. This is stupid and unnecessary. I’ve removed the original post because of this; it can be found here for those who want to read it.

I don’t know much about this particular case, I don’t know whether Lars came up on his own with the algorithm that is being patented or not, and I’m not really qualified to discuss that.

But that’s not what I want to write about. What really struck me from this post is the idea that programmers are not to blame for filing software patents. I think that’s just wrong.

Lawyers alone cannot create patents, you also need inventors, and being just a programmer does not absolve you of your acts. Let me rephrase that: There would be no patents without inventors willing to file them.

Obviously, corporations provide incentives for employees to file patents, but in most cases it’s not the actual incentives what motivates people to patent their inventions. It’s the benefit of being a good corporate employee, not being considered a trouble maker, not loosing opportunities for promotion, not bringing negative attention to yourself, not going against the tide.

I firmly believe that patents discourage progress and impede the growth of public domain of knowledge. Today patents do not protect the inventor’s interests, but instead promote anti-competitive practices by corporations. Moreover, most software patents are vague, bogus, or trivial, they do not serve any social purpose other than expanding the patent portfolio of your corporate masters.

You may not agree with all that, but if you do, then don’t excuse yourself blaming the system.

During the 5 years that I worked at NVIDIA I constantly came up with algorithms and software ideas that could be patented. I implemented many of them, others I simply outlined.

So, I started a wiki page in which I documented these ideas. The goal was to prevent others from patenting them. I called them anti-patents. I usually came up with a new one every month, sometimes several.

This might seem exaggerated, but when you are designing new hardware features that no one has explored, it’s very easy to come up with new things to do with it that nobody has done before. I think this is true for almost any field when you are working on the bleeding edge.

Eventually I stopped maintaing the wiki, it was too much work to describe them in detail, and in many cases I considered them trivial. In spite of that I believe that most of them would have been pursued by NVIDIA if I had chosen to allow it.

Over time I ascended in the corporate hierarchy until I became part of a selected group in charge of the design of future GPUs.

I was working with people much more experienced and smarter than me. I didn’t want to get noticed for causing trouble, but for doing a good work. So, predictably my name ended up in several patent applications.

Today, I deeply regret that.


  1. Just read yesterday an interview with a service provider of “defensive publications” to protect your own production processes from being patented by others without being forced to apply for it yourself. This company even publishes its own journals as legal issues require the public to be able to recognize the article with a distinct timestamp. Online publications, exhibitions or internal communication records seem to not meet this requirement (at least in Germany). The actual challenge is to not reveal significant parameters of the process.

    1. It documents who and when came up with the idea in the first place. Maybe I’m wrong, but I don’t think someone else can patent my ideas; at least I would be embarrassed to do so. I might be contractually obligated to file a patent if the management thinks I should, but management is well aware that doing that could very well terminate my employment relationship. My point, is that the way this is in practice achieved is by subtle coercion mechanism that developers are usually not aware of.

  2. Interesting. I don’t think there’s anything to stop a company from patenting ideas originated by an employee. I might be wrong, but after all when you join the company you sign a contract that effectively states that any technology (related to the employer’s business) that you develop while an employee (even in your spare time) is the company’s IP. (Which is why it’s important to document what is your IP before you sign the contract.)

    Also, because patents take so long from disclosure to filing to grant, many employees will have left by the time the company actually gets the patent — but they can still be awarded the patent after the employee is gone.

    1. Well, I’m not a lawyer, but I’d be surprised if the company could file the patent without my consent, even if I’m not working at the company anymore, but I’d love to hear from someone versed on the subject whether this is actually the case or not. All I can say is that at least NVIDIA does not enforce this and I suspect most companies wouldn’t go as far as jeopardizing the relationship with the employee either.

  3. Yeah, I don’t know what law applies either — but I’ve asked a patent lawyer friend and I’ll let you know. BTW, I agree with your assertion that software developers should take responsibility for their own patenting behavior. FWIW, I commented just out of personal interest — I don’t have any plans to dig up your wiki and get NVIDIA to patent your inventions! :)

  4. At one stage an individual could expect a long career as a team player assured by good research, steady publication, and contibution to a corporations patent portfolio. After this weeks layoffs at a large players corporation I know this to no longer be true. My advice to engineers is to avoid creating patents for employers or being named as a patent author and force the corporation to publish as author.

    1. Agreed. The incentives typically offered by employers are nowhere near enough to compensate for having your name attached to a patent owned by your employer. In particular, think about what happens if you go to work for someone else and end up working on something similar (highly likely if they hired you for your experience) – you could find yourself in conflict with your own patent. Also be aware that even if you leave you can still be subpoenaed to defend the patent.

  5. Hey Ignacio this is Tomas. We met an a GDC a while back. Nice to see you have done well.

    Respect to your post. I agree 100% IT IS SHAMEFUL for programmers to participate in patents. Having a name in a patent should be looked by peers as a disgrace and a selfish act. Yes it serves you in the short run but you end up hurting the rest of us. I could have patent many things I never did and never will (God welling). This should be the unwritten law for technical people in general but specially for game programmer like us that we are way less corporate than others. We should be setting the example.

    A better world does not just happen it must be made.

  6. Hello Ignacio,

    I understand corporations use and abuse patents, but as an individual I would feel vulnerable to those same corporations without filing one. I’m sure they would feel vulnerable, too, against their competitors.

    Patent term lengths need to be shorter, or industry specific. I don’t think people should be forced to share solutions, but I do agree that preventing others from understanding and implementing the same solution is terrible.

    Of course, some claim that patents assist in market competition, stimulating growth. But few, large corporations tend to horde all the patents, making small businesses nearly impossible to start. Claiming this kind of patenting aids a free, open market is a joke.

    Still, it’s a difficult issue. I might feel bad if I made a billion dollars from some trivial patent, but I wouldn’t feel good if I was pushed out of the market having created a widely implemented solution to a common problem. I’d feel bad because the executive above me came up with a distribution scheme and a profit share. That’s why I’d feel like he took “my” money, and that’s why I’d want to file a patent.

    – Pritchard

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