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+<!--#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&mdash;which, in our society, is most people&mdash;need software
+to be free of patents.</p>
+
+<p>The patents that threaten us are often called &ldquo;software
+patents&rdquo;, 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 &ldquo;computational idea
+patents&rdquo;.</p>
+
+<p>The US patent system doesn't label patents to say this one's a
+&ldquo;software patent&rdquo; and that one isn't. Software developers
+are the ones who make a distinction between the patents that threaten
+us&mdash;those that cover ideas that can be implemented in
+software&mdash;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&mdash;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 &ldquo;bad
+quality&rdquo;&mdash;mistakes of the patent system, that
+is&mdash;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 &ldquo;patent
+trolls&rdquo; or &ldquo;bad quality&rdquo; patents. The worst patent
+aggressor today is Apple, which isn't a &ldquo;troll&rdquo; by the
+usual definition; I don't know whether Apple's patents are &ldquo;good
+quality&rdquo;, but the better the patent's &ldquo;quality&rdquo; 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&mdash;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
+&ldquo;software&rdquo; or &ldquo;not software&rdquo;.</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&hellip; 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>
+
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+
+<p class="unprintable">Updated:
+<!-- timestamp start -->
+$Date: 2016/11/18 06:31:39 $
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