Related link: http://www.oreillynet.com/pub/a/network/2005/03/08/softwarepatents.html
This blog entry is in response to
Software Patents in the EU: A Perspective on the European Computer Implemented Inventions Directive
Like almost everything I’ve read on the web in regard to patents, the preceding article is full of inaccuracies and opinion masquerading as fact. Let’s not throw the baby out with the bath water. A poorly implemented patent system is bad (agreed!). But the solution is to improve the patent system, not simply discard software patents. (Disclaimer: I have a patent pending on some online collaborative database software that I’ve designed. The patent wouldn’t cover all databases or online collaboration. It is more narrow than that, but the details aren’t important for the purposes of this discussion.)
Here are some points of the aforementioned article with which I take issue:
1. The authors write: “For small and medium enterprises (SMEs) and in particular, free software projects, there is much to lose.”
While patents can have negative effects on the activities of some software developers, one could also argue that software patents can help protect the inventions of smaller software companies. If Microsoft was free to imitate any software without regard to patent licensing, what would prevent them from crushing anyone who invented anything novel in software?
2. The authors write: “The argument over the directive revolves around the question of whether or not we should be able to patent physical inventions that use software–such as a traffic light system–and whether or not we should be able to patent software itself. Most anti-patent groups accept that the former should be patentable, while the latter shouldn’t. If it were, then inventions such as the progress bar would be patentable.”
It is not accurate to say that the progress bar would be patentable. To be patentable in the US, an invention must be novel and non-obvious. Something as trivial as a progress bar might well not (indeed should not) meet that standard.
3. The authors write: “Patents were originally introduced to protect concrete and physical inventions.”
Actually, patents (and copyrights) in the US are authorized by Article I, Section 8, Clause 8 of the US Constitution:
“Congress shall have the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”
Nowhere does it say that inventions must be concrete or physical. In fact, it says “discoveries”, and it would be hard to argue that computer programs are neither science nor useful arts (in fact, they are both). With regard to copyright, the original citation mentions “writings” and not pictures, videos, and music, and yet those are still afforded copyright protection in the US. So it is reasonable to assume that the definition of an “inventor” or “discovery” should also change with the times. I believe that the Bessemer steel process, for example, was patented, even though the process is not physical but rather produces something physical.
3. The authors write: “Any type of state protectionism is a contract between the creator and society, under which society abridges certain freedoms in return for increased productivity through financial compensation.”
I disagree. It is a stretch to claim that respecting the rights of copyright and patent holders amounts to an abridgement of freedom. By that argument, I should be able to steal your bicycle because not being allowed to do so abridges my personal freedom. Richard Stallman (RMS) argues that bicycles and software are inherently different, because taking your bicycle deprives you of your bicycle whereas appropriating your software does not. This is untrue, because if I choose to sell my software, I can use the money to buy a bicycle. So freely using software can, in many cases, lower the value of it to the creator.
4. The authors write: “Specifically, patent law gives inventors an exclusive right to new technology for 20 years in return for publication of the technology’s specifications and for use of the technology in the monopolist’s products.”
That isn’t accurate. There is no requirement that a patent holder use the technology. And having a patent does not make someone a monopolist (a monopolist must have power over a market, and few software patents define an entire market). Furthermore, there are exceptions to patent law. For example, under US law, you cannot patent a nuclear device, and the US Gov’t can manufacture whatever they like without regard to whether it is patented (or licensed) if they deem it in the national interest. For example, one company invented a configurable splint that they wanted to license to the military. The military contracted with another vendor to manufacture it without paying the patentee a license fee. But yes, having a patent does give you some rights if someone else infringes on the patent. Regardless, the gov’t doesn’t enforce the patent for you. You still need to do that on your own dime. (It isn’t akin to the way that I can call the police to arrest a tresspasser on my property.)
5. The authors write: “So allowing patents wouldn’t lead to increased productivity, and they wouldn’t benefit the whole of society; they would be a bad idea.”
Huh? I don’t see how that follows from the preceding text. Patents encourage investment by giving the inventor some protection against people copying his/her ideas. You might argue that invention would take place without such protection, but it is certainly up for debate. Does anyone think that the software and web industries would exist in their current state were there no financial incentives? Certainly patents aren’t the only financial incentive (nor should they be) but they have a place in a healthy ecosystem.
6. The author writes: “While traditional patents were for concrete and physical inventions, software patents cover inventive ideas. An example that the Foundation for a Free Information Infrastructure gives is that, instead of patenting a specific mousetrap, you patent a “means of trapping mammals” or a “means of trapping data in an emulated environment.”
This statement is highly misleading. A well-written patent application (from the standpoint of the applicant) is as broad as possible. If I invented a “mousetrap”, I would be foolish to patent it as such. For maximum protection, I should patent it as an “animal trap” so that a competitor couldn’t simply claim that his version trapped rats instead of mice. Likewise, if someone patents a gun, they don’t patent the gun for a limited target, they try to patent it for all applicable uses. That is why patent applications read as broadly as possible. This is not limited to software patents.
7. The authors write: “This is not appropriate for software development, where innovation occurs rapidly, can be made without a substantial capital investment, and tends to involve creative combinations of previously known techniques.”
Innovation occurs rapidly in many sectors. There are thousands of patents that apply to bicycles, which have been around for well over 100 years. Some software development takes huge capital investments (or the equivalent in time). The fact that people are willing to write software for free doesn’t mean I can develop software at no cost (open source developers tend to write software to meet their own needs, not that of some company’s business plan). Furthermore, “creative combinations of previously known techniques” are generally not patentable or difficult to patent at best. By definition, if the techniques are previously known (or at least known to the patent examiner), they are not patentable. Even the patent applicant has a fiduciary obligation to reveal known “prior art” as it is called. Then, the applicant must show how the prior art doesn’t apply to the new invention and/or how the new invention is a non-obvious application/combination of prior art. Regardless, even if such a patent were granted, it generally affords very narrow protection for a very specific use.
8. The authors write: “For SMEs (who make up the majority of the industry) and free software projects, patents on pure software would be a disaster.”
On what basis do you make that claim? The US offers software patent protection, but the industry is not a disaster.
9. The authors write: “But for some big businesses, they are a lucrative prize.”
That is true. IBM makes a lot of money licensing their patent portfolio (several billion $). But there are many lucrative business prizes. Software patents is one that has not slowed software development in the US as far as I can tell. Are you seriously claiming that software developers do a patent search before deciding whether to use a particular technique? It simply doesn’t happen that way in reality.
10. The authors write: “With our economy increasingly dependent on knowledge, there has been a large movement towards increasing protection on information with copyright, patents, trademarks, and other legal means, misleadingly grouped together under the term “intellectual property.” ”
What is misleading about that? And, BTW, you mean “trade secrets” not “trademarks”. Trademarks have nothing to do with intellectual property. And, FYI, the US gov’t offers no protection for trade secrets. Anyone who can discover them without breach of contract or other illegal activity is free to use a trade secret once it is no longer secret.
11. The authors write: “Patents are another way for some big businesses to “protect” software in their interests.”
Patents are available to small businesses as well. This isn’t poliitical payola we’re talking here. If I recall correctly, some of the US patent filing/application fees are actually cheaper for small businesses.
12. The authors write: “Though there hasn’t yet been a concerted attack against free software using patents, there have been many attacks on SMEs. If any big business needs to remove competition and is failing to do this by beating them on price, quality, or free licensing, then they can simply attack them with their patent portfolio.”
This is a very specious argument. If a company is not infringing on another company’s patents, then they can’t be easily “attacked with a patent portfolio”. If a company is infringing on another’s patents, then why shouldn’t the patent holder be allowed to recoup its investment without being undercut by copycats? You’re implying that every innovator is bludgeoned by a big software company. That simply isn’t true. (I’m equally suspicious of companies like Microsoft that claim they lose billions to piracy, because most of those pirates wouldn’t ever buy the software.)
13. The authors write: “Even more worrying are the so-called “patent trolls” like Acacia Technologies, which “develops, acquires, and licenses” patented technologies, using them to extract licensing fees out of software developers, but who do not actually produce any software. The company is opening an office in Europe in the spring with the intention of demanding royalties on patents.”
This would seem to be the great equalizer where a small company would be able to enforce its patents against a larger, well-financed company. Why should Acacia be expected to produce software? They’re not a software company. That is like calling a banker a troll because he underwrote a software company’s IPO without creating software.
14. The authors write: “Since software, especially free software, is usually based upon a huge number of sub-programmes and ideas taken from other programmes, it would be extremely difficult to avoid patent infringement.”
The fact that programs are often based on earlier work is a testament to the thriving ecosystem that has developed. Many patents have been around long enough that the patent protection has expired, and they are therefore now in the public domain. I don’t understand what makes you think you have an unfettered right to take ideas from other programs without the inventor’s consent. First of all, the vast majority of software development is not patented. If you can demonstrate that the “invention” existed before the patent applicant invented it, then it is “prior art” and the patent should not be granted. If it has been granted, it can be overturned. The trouble is that patent examiners are not familiar enough with the prior art. Therefore, I’d recommend a public comment period and/or a large public prior art database to facilitate stricter standards for the issuance of patents. IOW, there are ways to fix the system without trashing it altogether.
15. The authors write: “However, under the U.S. system, SMEs have been restricted due to large companies building up patent portfolios that they use to reap billions in licensing revenues from other businesses.”
Unless the licensees are using the product to make money, they probably aren’t bothering to license it. Can you name a single open source developer paying licensing fees? Why shouldn’t other businesses pay for the right to use another companies software? (BTW, most large companies cross-license portfolios rather than paying large fees outright.)
16. The authors write: “The idea of selling products over the Internet has already been patented in the U.S., and Amazon used its “one-click buying” patent to famously sue Barnes & Noble in the late 1990s.”
Without exception, every time I’ve investigated these public claims, they turn out not to be an accurate picture. To my knowledge, no one in the US has paid any licensing fees for selling products over the internet. I’m sure there are many patents that “sound” like they cover internet commerce but are in fact much more narrow in scope than you describe. But many of these are so-called “defensive patents”. A large company will apply for a patent to avoid having some other company claim they infringed. But everyone in the US still buys and sells stuff on the internet without paying licensing fees. (You find much greater limits caused by, say, taxation than software patents.)
When a company tries to enforce an overly broad patent (which is rare), the whole industry gets in an uproar, prior art comes out of the woodwork, and the would-be patent enforcer backs down. So it simply is not true to suggest that whole segments of software development are being hijacked due to patents.
The one-click patent dispute was very specific (it wasn’t as broad a patent as many public commentaries claim) and Amazon was merely trying to protect its turf against a “me-too” competitor. Why shouldn’t Amazon be rewarded for innovation? Why should B&N be rewarded for merely following everything its competitor does? You might argue that Amazon shouldn’t be given a 20-year head start, and I agree. A software patent term of, say, 3 to 10 years might be better. But it really depends on the technology. Some take much longer to take hold.
17. The authors write: “Examples of currently granted European Patents are EP803105 and EP738446. These patent the idea of selling objects over a network using a server, client, and payment processor, or using a client and a server. In other words, these are patents on selling products over the Internet; clearly a lot of software would infringe on these overzealous patents.”
I haven’t examined those patents, but if they are overzealous, that should be addressed by the patent granting process, not by throwing out all software patents. By definition, a patent should only be granted for a very broad thing if that thing is new and non-obvious. Selling things over the Internet seems pretty obvious, and unless they applied a long time ago, it certainly isn’t new (at the time of the application). There are differing rules in different countries as to whether protection goes to the “first to invent” versus the “first to file.”
18. The authors write: “The time and money spent on patent filing, prosecution, maintenance, litigation, and licensing (which SMEs cannot afford, and which have caused many to fold or be bought out) could be better spent on product development and research leading to more innovation.”
Well, you could say the same thing about advertising or any duplicate infrastructure. By its very nature, competition is inefficient in the short term for increased efficiency (allocation of resources) in the long term. Lots of resources get wasted while multiple companies compete. The goal is to maintain the appropriate amount of incentives. To some, patents hinder incentives. To others, patents provide incentive.
19. The authors write: “Surely, software companies would prefer to live with the pressure of having to improve and innovate constantly instead of having to deal with software patents?”
Um, why would any company with unique intellectual property prefer to constantly give that innovation away to competitors for free?
20. The authors write: “This is how it works under copyright, which already prevents competitors from merely copying software. This is also how it has worked up ’til now, and we have managed to develop the Internet, operating systems, and other software without patents.”
Well, copyrights and patents are two entirely different things. If I invent some cool software application, without the protection of a patent, you can copy its functionality verbatim as long as you don’t literally take my code. Patents offer protection of the idea and not just the implementation of that idea. Yes, many things have been invented without software patents in Europe, but many things have also been invented in the US despite (or perhaps because of) software patents here.
21. The authors write: “For the free software community, which eschews patents both on pragmatic and ethical grounds, they represent an even more worrying threat.”
Some people consider it unethical to eat animals. Doesn’t mean I’m planning on becoming a vegetarian. So please don’t imply that anyone in favor of patents is unethical.
22. The authors write: “Free software can only guarantee its safety in an environment without patents, in which the only other threat is copyright infringement, which is easy to avoid–just don’t copy proprietary code.”
It isn’t the obligation of inventors to guarantee the future safety of free software development. The problem is that the original premise of a patent was that “If Bob didn’t invent this today, no one might ever invent it, so we better give Bob a patent to stimulate innovation.” Frankly, in software development, an idea might come a year or two later without patent protection, but there are so many people working on software, that almost any insight is likely to evolve from the community. Patent law tries to account for this by not allowing patents for something that is “obvious to someone skilled in the art”. But obviousness is a constantly moving target. Many things are obvious today simply because someone already invented them or something similar. I think there needs to be a higher barrier for “non-obviousness” although in my experience (applying for a patent in the US), the barrier is pretty high. The patent examiner bascially was arguing that if you take five existing patents in concert, they “anticipate” (a legal term) my invention. My reply was “Well, no one else was doing it, so it couldn’t be that obvious.”
Lastly, what do you do when software can generate something in the physical world, such as software to build a 3D model/prototype? I don’t think you can make an artificial distinction between physical inventions and “pure software.” I’m not saying these are easy issues. For example, some people are patenting medical techniques, such as a particular way to perform surgery. Maybe the solution is to have a patents rights clearing house so that a known fee could be paid to license a particular technology, similar to the way someone can license a song for a move soundtrack.
But I think software patents have a place. It is a matter of getting the implementation right.
What do you think?
