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diff --git a/talermerchantdemos/blog/articles/en/limit-patent-effect.html b/talermerchantdemos/blog/articles/en/limit-patent-effect.html new file mode 100644 index 0000000..c9bc30d --- /dev/null +++ b/talermerchantdemos/blog/articles/en/limit-patent-effect.html @@ -0,0 +1,193 @@ +<!--#include virtual="/server/header.html" --> +<!-- Parent-Version: 1.79 --> +<title>Giving the Software Field Protection from Patents +- GNU Project - Free Software Foundation</title> +<!--#include virtual="/philosophy/po/limit-patent-effect.translist" --> +<!--#include virtual="/server/banner.html" --> +<h2>Giving the Software Field Protection from Patents</h2> + +<p>by <a href="http://www.stallman.org/"><strong>Richard +Stallman</strong></a></p> + +<p><em>A version of this article was first published at +<a href="http://www.wired.com/opinion/2012/11/richard-stallman-software-patents/">Wired</a> +in November 2012.</em></p> + +<p>Patents threaten every software developer, and the patent wars we have +long feared have broken out. Software developers and software +users—which, in our society, is most people—need software +to be free of patents.</p> + +<p>The patents that threaten us are often called “software +patents”, but that term is misleading. Such patents are not +about any specific program. Rather, each patent describes some +practical idea, and says that anyone carrying out the idea can be +sued. So it is clearer to call them “computational idea +patents”.</p> + +<p>The US patent system doesn't label patents to say this one's a +“software patent” and that one isn't. Software developers +are the ones who make a distinction between the patents that threaten +us—those that cover ideas that can be implemented in +software—and the rest. For example, if the patented idea is the +shape of a physical structure or a chemical reaction, no program can +implement that idea; that patent doesn't threaten the software field. +But if the idea that's patented is a computation, that patent's barrel +points at software developers and users.</p> + +<p>This is not to say that computational idea patents prohibit only +software. These ideas can also be implemented in hardware—and +many of them have been. Each patent typically covers both hardware +<em>and</em> software implementations of the idea.</p> + +<h3>The Special Problem of Software</h3> + +<p>Still, software is where computational idea patents cause a special +problem. In software, it's easy to implement thousands of ideas +together in one program. If 10 percent are patented, that means hundreds of +patents threaten it.</p> + +<p>When Dan Ravicher of the Public Patent Foundation studied one large program +(Linux, which is the kernel of the +<a href="/gnu/gnu-linux-faq.html"> GNU/Linux</a> operating system) in +2004, he found 283 US patents that appeared to cover computing ideas +implemented in the source code of that program. That same year, a +magazine estimated that Linux was .25 percent of the whole GNU/Linux system. +Multiplying 300 by 400 we get the order-of-magnitude estimate that the +system as a whole was <em>threatened by around 100,000 patents</em>.</p> + +<p>If half of those patents were eliminated as “bad +quality”—mistakes of the patent system, that +is—it would not really change things. Whether 100,000 patents +or 50,000, it's the same disaster. This is why it's a mistake to +limit our criticism of software patents to just “patent +trolls” or “bad quality” patents. The worst patent +aggressor today is Apple, which isn't a “troll” by the +usual definition; I don't know whether Apple's patents are “good +quality”, but the better the patent's “quality” the +more dangerous its threat.</p> + +<p>We need to fix the whole problem, not just part of it.</p> + +<p>The usual suggestions for correcting this problem legislatively +involve changing the criteria for granting patents—for instance, +to ban issuance of patents on computational practices and systems to +perform them. This approach has two drawbacks.</p> + +<p>First, patent lawyers are clever at reformulating patents to fit +whatever rules may apply; they transform any attempt at limiting the +substance of patents into a requirement of mere form. For instance, +many US computational idea patents describe a system including an +arithmetic unit, an instruction sequencer, a memory, plus controls to +carry out a particular computation. This is a peculiar way of +describing a computer running a program that does a certain +computation; it was designed to make the patent application satisfy criteria +that the US patent system was believed for a time to require.</p> + +<p>Second, the US already has many thousands of computational idea +patents, and changing the criteria to prevent issuing more would not +get rid of the existing ones. We would have to wait almost 20 years +for the problem to be entirely corrected through the expiration of +these patents. We could envision legislating the abolition of these +existing patents, but that is probably unconstitutional. (The Supreme +Court has perversely insisted that Congress can extend private +privileges at the expense of the public's rights but that it can't go +in the other direction.)</p> + +<h3>A Different Approach: Limit Effect, Not Patentability</h3> + +<p>My suggestion is to change the <em>effect</em> of patents. We +should legislate that developing, distributing, or running a program +on generally used computing hardware does not constitute patent +infringement. This approach has several advantages:</p> + +<ul> +<li>It does not require classifying patents or patent applications as +“software” or “not software”.</li> +<li>It provides developers and users with protection from both existing +and potential future computational idea patents.</li> +<li>Patent lawyers cannot defeat the intended effect by writing +applications differently.</li> +</ul> + +<p>This approach doesn't entirely invalidate existing computational idea +patents, because they would continue to apply to implementations using +special-purpose hardware. This is an advantage because it eliminates +an argument against the legal validity of the plan. The US passed a +law some years ago shielding surgeons from patent lawsuits, so that +even if surgical procedures are patented, surgeons are safe. That +provides a precedent for this solution.</p> + +<p>Software developers and software users need protection from patents. +This is the only legislative solution that would provide full +protection for all. We could then go back to competing or +cooperating… without the fear that some stranger will wipe away +our work.</p> + +<p><em>See also: +<a href="/philosophy/patent-reform-is-not-enough.html"> +Patent Reform Is Not Enough</a></em></p> + +</div><!-- for id="content", starts in the include above --> +<!--#include virtual="/server/footer.html" --> +<div id="footer"> +<div class="unprintable"> + +<p>Please send general FSF & GNU inquiries to <a +href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. There are also <a +href="/contact/">other ways to contact</a> the FSF. 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