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diff --git a/talermerchantdemos/blog/articles/en/software-patents.html b/talermerchantdemos/blog/articles/en/software-patents.html new file mode 100644 index 0000000..22f9f60 --- /dev/null +++ b/talermerchantdemos/blog/articles/en/software-patents.html @@ -0,0 +1,1288 @@ +<!--#include virtual="/server/header.html" --> +<!-- Parent-Version: 1.90 --> +<title>Software Patents - GNU Project - Free Software Foundation</title> +<!--#include virtual="/philosophy/po/software-patents.translist" --> +<!--#include virtual="/server/banner.html" --> +<h2>Software patents — Obstacles to software development</h2> + +<p>by <strong>Richard Stallman</strong></p> + +<p> +<i> +This is the transcription of a talk presented by Richard M. Stallman on +March 25, 2002, at the University of Cambridge +<a href="http://www.cl.cam.ac.uk/">Computer Laboratory</a>, +organized by the <a href="http://www.fipr.org/">Foundation for Information +Policy Research</a>. Transcript and +<a href="http://audio-video.gnu.org/audio/#patent-cambridge-2002-03-25"> +audio recording</a> by Nicholas Hill. HTML editing and links by Markus +Kuhn. The original version is hosted at +<a href="http://www.cl.cam.ac.uk/~mgk25/stallman-patents.html"> +http://www.cl.cam.ac.uk/~mgk25/stallman-patents.html</a>. +</i> +</p> + + +<p> +You might have been familiar with my work on +<a href="/philosophy/free-sw.html">free software</a>. +This speech is not about that. This speech is about a way of +<a href="https://web.archive.org/web/20150329103351/http://www.progfree.org/Patents/against-software-patents.html"> +misusing laws</a> to make software development a dangerous activity. +This is about what happens when patent law gets applied to the field +of software. +</p> + +<p> +It is not about patenting software. That is a very bad way, a +misleading way to describe it, because it is not a matter of patenting +individual programs. If it were, it would make no difference, it +would be basically harmless. Instead, it is about patenting ideas. +Every patent covers some +idea. <a href="https://web.archive.org/web/20150329143651/http://progfree.org/Patents/patents.html"> +Software patents</a> are patents that cover software ideas, ideas +which you would use in developing software. That is what makes them a +dangerous obstacle to all software development. +</p> + +<p> +You may have heard people using a misleading term +“<a href="http://www.wipo.org/about-ip/en/">Intellectual +Property</a>”. This term, as you can see, is biased. It makes +an assumption that whatever it is you are talking about, the way to +treat it is as a kind of property, which is one among many +alternatives. This term “Intellectual Property” +pre-judges the most basic question in whatever area you are dealing +with. This is not conducive to clear and open minded thinking. +</p> + +<p> +There is an additional problem which has nothing to do with promoting +any one opinion. It gets in the way of understanding even the facts. +The term “intellectual property” is a catch-all. It lumps +together completely disparate areas of law such as copyrights and +patents, which are completely different. Every detail is different. +It also lumps together trademarks which are even more different, and +various other things more or less commonly encountered. None of them +has anything in common with any of the others. Their origins +historically are completely separate. +<span class="gnun-split"></span>The laws were designed +independently. They covered different areas of life and activities. +The public policy issues they raise are completely unrelated. So, if +you try to think about them by lumping them together, you are +guaranteed to come to foolish conclusions. There is literally no +sensible intelligent opinion you can have about “Intellectual +Property”. If you want to think clearly, don't lump them +together. Think about copyrights and then think about patents. Learn +about copyright law and separately learn about patent law. +</p> + +<p> +To give you some of the biggest differences between copyrights and +patents: Copyrights cover the details of expression of a work. +Copyrights don't cover any ideas. Patents only cover ideas and the +use of ideas. Copyrights happen automatically. Patents are issued by +a patent office in response to an application. +</p> + +<p> +Patents cost a lot of money. They cost even more paying the lawyers +to write the application than they cost to actually apply. It takes +typically some years for the application to get considered, even +though patent offices do an extremely sloppy job of considering. +</p> + +<p> +Copyrights last tremendously long. In some cases they can last as +long as 150 years, where patents last 20 years, which is long enough +that you can outlive them but still quite long by a timescale of a +field such as software. +</p> + +<p> +Think back about 20 years ago when a PC was a new thing. Imagine +being constrained to develop software using only the ideas that were +known in 1982. +</p> + +<p> +Copyrights cover copying. If you write a novel that turns out to be +word-for-word the same with <cite>Gone with the Wind</cite> and you +can prove you never saw <cite>Gone with the Wind</cite>, that would be +a defense to any accusation of copyright infringement. +</p> + +<p> +A patent is an absolute monopoly on using an idea. Even if you could +prove you had the idea on your own, it would be entirely irrelevant if +the idea is patented by somebody else. +</p> + +<p> +I hope you will forget about copyrights for the rest of this talk +because this talk is about patents and you should never lump together +copyrights and patents. It is about your understanding of these legal +issues. It is like what would happen in your understanding of +practical chemistry if you confused water and ethanol. +</p> + +<p> +When you hear people describe the patent system, they usually describe +it from the point of view of somebody who is hoping to get a patent- +what it would be like for you to get a patent. What it would be like +for you to be walking down the street with a patent in your pocket so +that every so often you can pull it out and point it out at somebody +and say “Give Me Your Money!”. There is a reason for this +bias, which is that most of the people who will tell you about this +patent system have a stake in it, so they want you like it. +</p> + +<p> +There is another reason—the patent system is a lot like a +lottery because only a tiny fraction of patents actually bring any +benefit to those who hold the patents. In fact, +<cite><a href="https://www.economist.com/leaders/2011/08/20/patent-medicine"> +The Economist</a></cite> once compared it to a time consuming lottery. +If you have seen ads for lotteries, they always invite you to think +about winning. They don't invite you to think about losing, even +though losing is far more likely. It is the same with ads for the +patent system. They always invite you to think about being the one +who wins. +</p> + +<p> +To balance this bias, I am going to describe the patent system from +the point of view of its victims. That is from the point of view of +somebody who wants to develop software but is forced to contend with a +system of software patents that might result in getting sued. +</p> + +<p> +So, what is the first thing you are going to do after you have had an +idea of what kind of program you are going to write? The first thing +you might want to try to do to deal with the patent system is find out +what patents may cover the program you want to write. This is +impossible. The reason is that some of the patent applications that +are pending are secret. After a certain amount of time they may get +published, like 18 months. But that is plenty of time for you to +write a program and even release it not knowing that there is going to +be a patent and you are going to get sued. +<span class="gnun-split"></span>This is not just academic. +In 1984, the compress program was written, a program for data +compression. At the time, there was no patent on the LZW compression +algorithm which it used. Then in 1985, the US issued a <a +href="https://patents.justia.com/patent/4558302">patent</a> on this +algorithm and over the next few years, those who distributed the +compress program started getting threats. There was no way that the +author of compress could have realized that he was likely to get sued. +All he did was use an idea that he found in a journal just like +programmers have always done. He hadn't realized that you could no +longer safely use ideas that you found in a journal. +</p> + +<p> +Let's forget about that problem… The issued patents are +published by the patent office so you can find the whole long list of +them and see exactly what they say. Of course, you couldn't actually +read that whole list as there are too many of them. In the US, there +are hundreds of thousands of software patents. +</p> + +<p> +There is no way you can keep track of what they are all about. You +would have to try to search for relevant ones. Some people say that +should be easy in these modern days of computers. You could search +for key words and so-on. That one works to a certain extent. You +will find some patents in the area. You won't necessarily find them +all however. For instance, there was a software patent which may have +expired by now on natural order recalculation in spread sheets. +<span class="gnun-split"></span>This +means basically that when you make certain cells depend upon other +cells, it always recalculates everything after the things it depends +on, so that after one re-calculation, everything is up to date. The +first spread sheets did their recalculation top-down, so if you made a +cell depend on a cell lower down, and you had a few such steps, you +had to recalculate several times to get the new values to propagate +upwards. You were supposed to have things depend upon cells above +them. +<span class="gnun-split"></span>Then someone realized why don't I do the recalculation so that +everything gets recalculated after the things it depends upon? This +algorithm is known as topological sorting. The first reference to it +I could find was in 1963. The patent covered several dozen different +ways you could implement topological sorting but you wouldn't have +found this patent by searching for spreadsheet. You couldn't have +found it by searching for natural order or topological sort. It +didn't have any of those terms in it. In fact, it was described as a +method of compiling formulas into object code. When I first saw it, I +thought it was the wrong patent. +</p> + +<p> +Let's suppose that you got a list of patents. So you want to see know +what you are not allowed to do. When you try studying these patents, +you will discover they are very hard to understand as they are written +in tortuous legal language, whose meaning is very hard to understand. +The things patent offices say often don't mean what they seem to mean. +</p> + +<p> +There was an Australian government study of the patent system in the +1980's. It concluded that aside from international pressure, there +was no reason to have a patent system. It did no good for the public +and recommended abolishing it if not for international pressure. One +of the things they cited was that engineers don't try reading patents +to learn anything, as it is too hard to understand them. They quoted +one engineer saying “I can't recognize my own inventions in +patenteese”. +</p> + +<p> +This is not just theoretical. Around 1990, a programmer named +<a href="http://www.atarimagazines.com/startv2n3/hypercard.html">Paul +Heckel</a> sued Apple claiming that Hypercard infringed a couple of +his <a href="https://patents.justia.com/patent/4486857">patents</a>. +When he first saw Hypercard, he didn't think it had anything to do +with his patent, with his “Inventions”. It didn't look +similar. When his lawyer told him that you could read the patents as +covering part of Hypercard, he decided to attack Apple. +<span class="gnun-split"></span>When I had a +speech about this at Stanford, he was in the audience, he said “That's +<a href="https://groups.csail.mit.edu/mac/classes/6.805/articles/int-prop/heckel-debunking.html"> +not true</a>, I just didn't understand the extent of my +protection!” I said yes, that's what I said! So, in fact, you +will have to spend a lot of time talking with lawyers to figure out +what these patents prohibit you from doing. +<span class="gnun-split"></span>Ultimately they are going +to say something like this: “If you do something in here, you +are sure to lose, If you do something here, there is a substantial +chance of losing, and if you really want to be safe, stay out of this +area. And, by the way, there is a sizable element of chance in the +outcome of any law suit”. +</p> + +<p> +Now, that you have a predictable terrain for doing business(!) what +are you going to do? Well, there are three approaches that you might +try. Any of which is applicable in some cases. +</p> + +<p>They are</p> + +<ol> +<li>Avoiding the patent</li> +<li>Licensing the patent</li> +<li>Overturning the patent in court.</li> +</ol> + +<p> +Let me describe these three approaches and what makes them workable or +unworkable. +</p> + +<h3>1) Avoiding the patent</h3> + +<p> +That means don't use the idea that the patent covers. This can be +easy or hard, depending on what that idea is. In some cases, a +feature is patented. Then you avoid the patent by not implementing +that feature. Then it just matters how important is that feature. In +some cases, you can live without it. A while ago, the users of the +word processor XyWrite got a downgrade in the mail. The downgrade +removed a feature which allowed you to pre-define abbreviations. That +when you typed an abbreviation followed by a punctuation character, it +would immediately replace itself with by some expansion. +<span class="gnun-split"></span>So that way +you could define the abbreviation for some long phrase, type the +abbreviation then the long phrase will be in your document. They +wrote to me about this because they knew +the <a href="/software/emacs/">Emacs</a> editor has a similar feature. +In fact, it had it since the 70's. This was interesting because it +showed me that I had at least one patentable idea in my life. I knew +it was patentable because somebody else patented it afterward! +Actually, they had tried these various approaches. +<span class="gnun-split"></span>First they tried +negotiating with the patent holder, who turned out not to negotiate in +good faith. Then they looked at whether they could have a chance of +overturning the patent. What they decided to do was take out the +feature. You can live without this feature. If the word processor +lacks only this feature, maybe people will still use it. But as +various features start getting hit, eventually you end up with a +program people think is not very good and they are likely to reject +it. That is a rather narrow patent on a very specific feature. +</p> + +<p> +What do you do with the +<a href="https://patents.justia.com/patent/4873662">British +Telecom patent</a> on traversing hyper links together with dial-up +access? Traversing hyper links is absolutely essential to a major use +of computers these days. Dial-up access is also essential. How do +you do without this feature, which, by the way, isn't even one +feature, it is really a combination of two just arbitrarily +juxtaposed. It is rather like having a patent on a sofa and +television in the same room. +</p> + +<p> +Sometimes the idea that's patented will be so broad and basic that it +basically rules out an entire field. For instance, the idea of Public +Key Encryption which was patented in the US. The patent expired in +1997. Until then, it largely blocked the use of Public Key Encryption +in the US. A number of programs that people started to develop got +crushed. They were never really available because the patent holders +threatened them. +<span class="gnun-split"></span>Then, one program got away. The +program <a +href="https://web.archive.org/web/20170315023711/http://www.pgpi.org/"> +PGP</a>, which initially was +released as free software. Apparently, the patent holders by the time +they got around to attacking, realized they might get too much bad +publicity. So they imposed restrictions making it for non-commercial +use only, which meant it couldn't catch on too much. So they greatly +limited the use of Public Key Encryption for a decade or more. There +was no way around that patent. There was nothing else you could do +like that. +</p> + +<p> +Sometimes a specific algorithm gets patented. For instance, there is +a patent on an optimized version of the Fast Fourier Transform. It +runs about twice as fast. You can avoid that by using the ordinary +FFT in your program. That part of your program will take twice as +long. Maybe that doesn't really matter, maybe that is a small part of +the program's running time. Maybe if it is twice as slow, you won't +really notice. Or maybe that means your program won't run at all +because it will take twice real time to do its job. The effects vary. +</p> + +<p> +In some cases, you can find a better algorithm. This may or may not +do you any good. Because we couldn't use compress, in the GNU project +we started looking for some other algorithm for data compression. +Somebody wrote to us saying he had one. He had written a program and +he decided to contribute it to us. We were going to release it. Just +by chance, I happened to see a copy of the New York Times. It +happened to have the weekly patent column in it. I didn't see a copy +of the Times more than once every few months. So I looked at it and +it said that somebody had got a patent for “Inventing a new +method of compressing data”. +<span class="gnun-split"></span>I figured I better take a look at +this patent. I got a copy and it turned out to cover the program that +we were just a week away from releasing. That program died before it +was born. Later on we did find another algorithm which was +un-patented. That became the program <a href="/software/gzip/"> +gzip</a>, which is now effectively the de-facto standard for data +compression. As an algorithm to use in a program for data +compression, it was fine. Anyone who wanted to do data compression +could use gzip instead of compress. But the same patented LZW +compression algorithm was also used in image formats such as +the <a href="/philosophy/gif.html">GIF</a> format. +<span class="gnun-split"></span>But there because +the job people wanted to do was not to simply compress data but to +make an image that people could display with their software, it turned +out extremely hard to switch over to a different algorithm. We have +not been able to do it in 10 years! Yes, people use the gzip +algorithm to define <a href="http://www.w3.org/Graphics/PNG/">another +image format</a>, once people started getting threatened with law +suits for using GIF files. When we started saying to people stop +using GIF files, switch over to this, people said “We can't +switch. The browsers don't support the new format yet”. The +browser developers said “We're not in a hurry about this. After +all, nobody is using this file format”. +</p> + +<p> +In effect, society had so much inertia in the use of the GIF format, +we have not been able to get people to switch. Essentially, the +community's use of the GIF format is still pushing sites into using +GIF format with the result that they are vulnerable to these threats. +</p> + +<p> +In fact, the situation is even more bizarre. There are in fact two +patents covering the LZW compression algorithm. The patent office +couldn't even tell that they were issuing two patents on the same +thing. They couldn't keep track. There is a reason for this. It +takes a while of study of these two patents to see that they really +cover the same thing. +</p> + +<p> +If they were patents on some chemical process, it would be much +easier. You could see what substances were being used, what the +inputs were, what the outputs were, which physical actions are being +taken. No matter how they are described, you'd see what they were and +then you would see that they are similar. +</p> + +<p> +If something is purely mathematical, there are many ways of describing +it, which are a lot more different. They are not superficially +similar. You have to really understand them to see they are talking +about the same thing. The patent office doesn't have time. The US +Patent Office as of a few years ago, was spending on average 17 hours +per patent. This is not long enough to think carefully about them, +so, of course they make mistakes like that. In fact, I told you about +the program that died before it was born. That algorithm also had two +patents issued for it in the US. Apparently, it is not that unusual. +</p> + +<p> +Avoiding the patents may be easy, may be impossible. It may be easy +but it makes your program useless. It varies depending on the +situation. +</p> + +<p> +Here is another point I should mention: Sometimes a company or +consortium can make a format or protocol the de-facto standard. Then, +if that format or protocol is patented, that is a real disaster for +you. There are even official standards that are restricted by +patents. There was a big political uproar last September when the +<a href="http://www.w3.org/TR/patent-practice">World Wide Web +Consortium</a> was proposing to start adopting standards that were +covered by patents. The community objected so they reversed +themselves. +<span class="gnun-split"></span>They went back to insisting that any patents had to be +freely implementable by anyone and that the standards had to be free +for anyone to implement. That is an interesting victory. I think +that was the first time any standards body has made that decision. It +is normal for standards bodies to be willing to put something in a +standard which is restricted by patents and people are not allowed to +go ahead and implement it freely. We need to go to other standards +bodies and call on them to change their rules. +</p> + +<h3>2) Licensing the patent</h3> + +<p> +The second possibility instead of avoiding the patent is to get a +license for the patent. This is not necessarily an option. The +patent holder does not have to offer you a license, it is not +required. 10 Years ago, the league for programming freedom got a +letter asking for help from somebody whose family business was making +gambling machinery for casinos and they used computers back then. He +received a threat from another company that said we have the patents. +You are not allowed to make these things. Shut down. +</p> + +<p> +I looked at that patent. It covered having a number of computers on a +network for playing games such that each computer supported more than +one game and allowed you to play more than one game at a time. +</p> + +<p> +You will find patent office really think that there is something +brilliant about doing more than one of anything. They don't realize +that in computer science, that's the most obvious way to generalize +anything. You did it once and now you can do it any number of times, +you can make a subroutine. They think that if you do anything more +than once, that somehow means you are brilliant and that nobody can +possibly argue with you and that you have the right to boss them +around. Anyway, he was not offered a license. He had to shut down. +He couldn't even afford really to go to court. I would say that +particular patent was an obvious idea. It is possible that a judge +might have agreed, but we will never know because he could not afford +to go to court. +</p> + +<p> +However, a lot of patent holders do offer licenses. They often charge +a lot of money for that though. The company licensing the natural +order recalculation patent was demanding 5% of the gross sales of +every spreadsheet in the US. I am told that was the cheap pre-lawsuit +price. If you actually made them sue you and they won, they'd demand +more. You might be able to afford that 5% for licensing this one +patent, but what if you need to license 20 different patents to make +the program? Then all the money you take in goes on patents. What if +you need to license 21 patents? +</p> + +<p> +People in business told me that practically speaking, 2 or 3 of them +would make any business unfeasible. +</p> + +<p> +There is a situation where licensing patents is a very good solution. +That is if you are a multinational mega-corporation. Because these +companies own a lot of patents, and they cross-license with each +other. That way, they escape most of the harm that the patent system +does and they only get the good. IBM published an +<a href="https://web.archive.org/web/20150329104135/http://progfree.org/Links/prep.ai.mit.edu/ibm.think.article"> +article</a> in Think magazine. I believe it was issue No. 5 of 1990 +on IBM's patent portfolio, which said that IBM got two kinds of +benefit from its 9000 US patents. I believe the number is larger +today. These were first, collecting royalties and second, getting +access to the patents of others. They said that the latter benefit is +an order of magnitude greater. So the benefit that IBM got from being +allowed to use the ideas that were patented by others was 10 times the +direct benefit IBM could get from licensing patents. What does this +really mean? +</p> + +<p> +What is the benefit that IBM gets from this access to the patents of +others? It is basically the benefit of being excused from the trouble +that the patent system can cause you. The patent system is like a +lottery. What happens with any given patent could be nothing, could +be a windfall for some patent holder or a disaster for everyone else. +But IBM being so big, for them, it averages out. They get to measure +the average harm and good of the patent system. +<span class="gnun-split"></span>For them, the trouble +of the patent system would have been 10 times the good. I say would +have been because IBM through cross-licensing avoids experiencing that +trouble. That trouble is only potential. It doesn't really happen to +them. But when they measure the benefits of avoiding that trouble, +they estimate it as 10 times the value of the money they collect from +their patents. +</p> + +<p> +This phenomenon of cross-licensing refutes a common myth, the myth of +the starving genius. The myth that patents “protect” the +“small inventor”. Those terms are propaganda terms. You +shouldn't use them. The scenario is like this: Suppose there is a +brilliant designer of whatever of whatever. Suppose he has spent +years starving in the attic designing a new wonderful kind of whatever +and now wants to manufacture it and isn't it a shame the big companies +are going to go into competition with him, take away all the business +and he'll “starve”. +<span class="gnun-split"></span>I will have to point out that people +in high tech fields are not generally working on their own and that +ideas don't come in a vacuum, they are based on ideas of others and +these people have pretty good chances of getting a job if they need to +these days. So this scenario, the idea that a brilliant idea came +from this brilliant person working alone is unrealistic and the idea +that he is in danger of starving is unrealistic. But it is +conceivable that somebody could have an idea and this idea along with +100 or 200 other ideas can be the basis of making some kind of product +and that big companies might want to compete with him. +<span class="gnun-split"></span>So let's see +what happens if he tries to use a patent to stop them. He says +“Oh No, IBM. You cannot compete with me. I've got this patent. +IBM says let's see. Let's look at your product. Hmmm. I've got this +patent and this one and this one and this one and this one and this +one, which parts of your product infringe. If you think you can fight +against all of them in court, I will just go back and find some more. +So, why don't you cross license with me?” And then this +brilliant small inventor says “Well, OK, I'll cross +license”. So he can go back and make these wonderful whatever +it is, but so can IBM. IBM gets access to his patent and gets the +right to compete with him, which means that this patent didn't +“protect” him at all. The patent system doesn't really do +that. +</p> + +<p> +The mega-corporations avoid, for the most part, the harm of the patent +system. They see mainly the good side. That is why they want to have +software patents. They are the ones who will benefit from it. But if +you are a small inventor or work for a small company, the small +company is not going to be able to do this. They try. The problem is +that they cannot get enough patents to do this. Any given patent is +pointing in a certain direction. So if a small company has patents +pointing there, there and there and somebody over there points a +patent at them and says give me your money, they are helpless. +<span class="gnun-split"></span>IBM +can do it because with these 9000 patents, they are pointing +everywhere, no matter where you are, there is probably an IBM patent +pointing at you. So IBM can almost always make you cross license. +Small companies can only occasionally make someone cross-license. +They will say they want patents for defensive purposes but they won't +get enough to be able to defend themselves. +</p> + +<p> +There are cases where even IBM cannot make someone cross-license. +That is when there is a company whose sole business is taking a patent +and squeezing money out of people. The company that had the natural +order recalculation patent was exactly such a company. Their sole +business was to threaten to sue people and collect money from people +who were really developing something. +</p> + +<p> +There are no patents on legal procedures. I guess the lawyers +understand what a pain it would be to have to deal with the patent +system themselves. The result is that there is no way to get a patent +to make that company cross license with you. So they go around +squeezing everyone. But I guess companies like IBM figure that is +part of the price of doing business so they can live with it. +</p> + +<p> +So that is the possibility of licensing a patent which may or may not +be possible and you may or may not be able to afford it. +</p> + +<h3>3) Overturning a patent in court</h3> + +<p> +Supposedly, in order to be patented, something has to be new, useful +and unobvious. That is the language used in the US. I think other +countries have different language which is pretty much equivalent to +it. Of course, when the patent office gets into the game, they start +interpreting new and unobvious. New turns out to mean we don't have +it in our files and unobvious tends to mean unobvious to someone with +an IQ of 50. +</p> + +<p> +Somebody who studies most of the software patents issued in the US, or +at least he used to, I don't know if he can still keep up with them, +said that 90% of them wouldn't pass the crystal city test, which meant +if the people in the patent office went outside to the news stand and +got some computer magazines, they would see that these ideas are +already known. +</p> + +<p> +The patent office does things that are so obviously foolish, you +wouldn't even have to know the state of the art to see they are +foolish. This is not limited to software. I once saw the famous +Harvard mouse patent which was obtained after Harvard genetically +engineered a strain of mouse with a cancer causing gene. The cancer +causing gene was already known and was inserted using known techniques +into an already existing strain of mouse. The patent they got covered +inserting any cancer causing gene into any kind of mammal using any +method whatsoever. You don't have to know anything about genetic +engineering to realize that is ridiculous. +</p> + +<p> +I am told that this over claiming is normal practice and that the US +Patent Office sometimes invited patent applicants to make their claims +broader. Basically make the claims broader until you think they are +running into something else that's unambiguous prior art. See how +much land grab in mental space you can get away with. +</p> + +<p> +When programmers look at a lot of software patents, they say this +is ridiculously <a +href="https://web.archive.org/web/20040604051644/http://people.qualcomm.com/karn/patents/patent-comments.html"> +obvious</a>! Patent bureaucrats have all sorts of excuses to +justify ignoring what programmers think. They say “Oh! But you +have to consider it in terms of the way things were 10 or 20 years +ago”. Then they discovered that if they talk something to death +then you can eventually lose your bearings. Anything can look +unobvious if you tear it apart enough, analyze it enough. You simply +lose all standard of obviousness or at least lose the ability to +justify any standard of obvious or unobvious. Then, of course, they +describe the patent holders as brilliant inventors, all of them. +Therefore we can't question their entitlement to power over what we +can do. +</p> + +<p> +If you go to court, the judges are likely to be a little more +stringent about the idea of what is obvious or not. But the problem +is that it costs millions of dollars to do that. I heard of one +patent case, the defendant I remember was Qualcomm, and I believe the +ruling was ultimately 13 million dollars of which most went to pay the +lawyers on both sides. There were a few million dollars left over for +the plaintiff, because they lost. +</p> + +<p> +To a large extent, the question of the validity of a patent will +depend on historical accidents. Lots of historical accidents such as +precisely what was published when and which of those things somebody +manages to find. Which of them didn't get lost, precise dates and +so-on. Many historical accidents determine whether a patent is valid. + +<span class="gnun-split"></span>In fact, it is a weird thing that the +<a href="https://patents.justia.com/patent/4873662"> +British Telecom following hyper links together with telephone access +patent</a>, I think, was applied for in 1975. I think it was in 1974 +that I developed the info package for the first time. The info +package allows you to traverse hyper links and people did use +telephones to dial up and access the system. So in fact, I produced a +piece of prior art for that patent. So that is the second patentable +idea I have had in my life, but I don't think I have any proof of +that. I didn't think this was interesting enough to publish it. +After all, the idea of following hyper links I got from the demo of +Engelbart's editor. He is the one who had an idea which was +interesting to publish. +<span class="gnun-split"></span>What I'd done I called “poor man's hypertext” as I +had to implement it in the context of TECO. It was not as powerful as +his hypertext but it was at least useful for browsing documentation, +which it all it was meant for, and as for there being dial-up access +to the system, well, there was, but it didn't occur to me that the one +had anything particular to do with the other. I wasn't going to +publish a paper saying “Oh! I implemented this poor man's +hypertext, and guess what! There are dial-up lines on the computer +too!” I suspect there is no way to tell precisely on what dates +I implemented this. And was it published in any sense? Well, we +invited guests to come in across the ARPAnet, and log in on our +machine, so they could have browsed documentation using info and seen +the thing. If they had asked us, they would have found we have +dial-up access. But as you can see, historical accident determines +whether you have prior art. +</p> + +<p> +Now of course, there is a publication made by Engelbart about +hypertext, which they are going to show. I don't think it says +anything about having dial-ups on the computer however, so whether it +will suffice is not clear. So, this is an option, the possibility of +going to court to overturn the patent. +</p> + +<p> +Because of the expense, it is often out of the question even if you +can find solid prior art that ought to be sufficient to overturn the +patent. As a result, an invalid patent, a patent that nominally +shouldn't have existed (but in fact lots and lots of them do) is a +dangerous weapon. If somebody attacks you with an invalid patent, +that can really cause a lot of trouble for you. You might be able to +bluff them away by showing them the prior art. It depends upon +whether they can get scared off that way or they might think +“well, you are just bluffing, we figure you can't really go to +court, you can't afford it so we'll sue you anyway”. +</p> + +<p> +All of these three possibilities are things that sometimes you can +manage to use, but often you can't. So you have to face patent after +patent after patent. Each time you may be able to find one of these +three possibilities you can use, then there is another patent then +another and another. It gets like crossing a minefield. Each step +you take, each design decision, probably won't step on a patent, so +you can take a few steps and probably there won't be an explosion. +But the chance you will get all the way through the minefield and get +to develop the program you want to develop without ever stepping on a +patent gets less and less as the program gets bigger. +</p> + +<p> +Now, people used to say to me, “Well, there are patents in other +fields, why should software be exempt?”. Note the bizarre +assumption in there that somehow we are all supposed to suffer through +the patent system. It is like saying “Some people get cancer. +Why should you be exempt?” As I see it, each person who doesn't +get cancer is good. But there is, behind that, a less biased +question, which is a good question which is: Is software different +from other fields? Should patent policy be different in different +fields? If so, why? +</p> + +<p> +Let me address that question: patents relate to different fields +differently because in various fields patents relate to products +differently. +</p> + +<p> +On one extreme we have pharmaceuticals where a given chemical formula +would be patented, so that patent covers one and only one product. +Some other product wouldn't be covered by the existing patent. If +there is to be a patent for this new product, the patent holder would +be whoever developed the new product. +</p> + +<p> +That fits in with the naive idea of the patent system that we have, +that if you are designing a new product, you are going to get +“The Patent”. The idea that there is one patent per +product and that it covers the idea of that product. In some fields +it is closer to being true. In other fields it is further from being +true. This is because software packages are usually very big. They +use many different ideas in a new combination. If the program is new +and not just copied, then it is probably using a different combination +of ideas combined, of course, with newly written code, because you +can't just magically say the names of these ideas and have them work. +You have to implement them all. +<span class="gnun-split"></span>You have to implement them all in +that combination. The result is that even when you write a program, +you are using lots of different ideas, any one of them might be +patented by somebody. A pair of them may be patented as a combination +by somebody. There might be several different ways of describing one +idea which might be patented by various different people. So there +are possibly thousands of things, thousands of points of vulnerability +in your program, which might be patented by somebody else already. +This is why software patents tend to obstruct the progress of +software—the work of software development. +</p> + +<p> +If it were one patent-one product, then these patents wouldn't obstruct the +development of products because if you developed a new product, it +wouldn't be patented by somebody else already. But when one product +corresponds to many different ideas combined, it becomes very likely +your new product is going to be patented by somebody else already. In +fact, there is economic research now showing just how imposing a +patent system on a field where there is incremental innovation, can +retard progress. +<span class="gnun-split"></span>You see, the advocates of software patents say +“well yes, there may be problems but more important than any +problems, the patents must promote innovation and that is so important +it doesn't matter what problems you cause”. Of course, they +don't say that out loud because it is ridiculous but implicitly they +want you to believe that as long as it promotes progress, that +outweighs any possible cost. But actually, there is no reason to +believe it does promote progress. We now have a model showing +precisely how patents can retard progress. The case where that model +can fit describes the software field pretty well; Incremental +innovation. +</p> + +<p> +Why is software on that extreme of the spectrum? The reason is that +in software we are developing idealized mathematical objects. You can +build a complicated castle and have it rest on a thin line and it will +stay up because it doesn't weigh anything. In other fields, people +have to cope with the perversity of matter—of physical objects. +Matter does what it is going to do. You can try to model it and if +the actual behavior doesn't fit the model then tough on you, because +the challenge is to make physical objects that really work. +</p> + +<p> +If I wanted to put an ‘If’ statement in a +‘While’ statement, I don't have to worry about whether the +‘If’ statement will oscillate at a certain frequency and +rub against the ‘While’ statement and eventually they will +fracture. I don't have to worry whether it will oscillate at a +certain higher frequency and induce a signal in the value of some +other variable. I don't have to worry about how much current that +‘If’ statement will draw and whether it can dissipate the +heat there inside that while statement. Whether there will be a +voltage drop across the while statement that will make the +‘If’ statement not function. +<span class="gnun-split"></span>I don't have to worry that +if i run this program in a salt water environment that the salt water +may get in between the ‘If’ statement and the +‘While’ statement and cause corrosion. I don't have to +worry when I refer to the value of a variable whether I am exceeding +the fan-out limit by referring to it 20 times. I don't have to worry, +when I refer to the variable, how much capacitance it has and whether +there has been sufficient time to charge up the value. I don't have +to worry when I write the program, about how I am going to physically +assemble each copy and whether I can manage to get access to put that +‘If’ statement inside the ‘While’ statement. +I don't have to worry about how I am going to gain access in case that +‘If’ statement breaks, to remove it and replace it with a +new one. +</p> + +<p> +So many problems that we don't have to worry about in +software. That makes it fundamentally easier. It is fundamentally +easier to write a program than to design a physical object that's +going to work. This may seem strange because you have probably heard +people talking about how hard software is to design and how this is a +big problem and how we are going to solve it. They are not really +talking about the same question as I am. I am comparing physical and +software systems of the same complexity, the same number of parts. I +am saying the software system is much easier to design than the +physical system. But the intelligence of people in these various +fields is the same, so what do we do when we are confronted with an +easy field? We just push it further! We push our abilities to the +limit. +<span class="gnun-split"></span>If systems of the same size are easy, let's make systems which +are ten times as big, then it will be hard! That's what we do! We +make software systems which are far bigger in terms of number of parts +than physical systems. A physical system whose design has a million +different pieces in it is a mega project. A computer program whose +design has a million pieces in it, is maybe 300,000 lines, a few +people will write that in a couple of years. That is not a +particularly giant program. GNU Emacs now has several million pieces +in its design I think. It has a million lines of code. This is a +project done with essentially no funding whatsoever. Mostly done by +people in their spare time. +</p> + +<p> +There is another big saving. If you have designed a physical product, +the next thing you have to do is design the factory to make it. To +build this factory may cost millions or tens of millions whereas to +make copies of the program, you just have to type ‘copy’. +The same copy command will copy any program. You want copies on CD +then fine. You burn a master CD and send it off to a CD plant. They +will use the same equipment which will copy any contents on a CD. You +don't have to build a factory to make this product. There is +tremendous simplification and tremendous reduction in costs of +designing things. + +<span class="gnun-split"></span>The result is, say for an automobile company, who +will spend 50 million dollars to build a factory, to build a new model +of auto, they can hire some lawyers to cope with patent license +negotiations. They can even cope with a law suit if they wanted to. +To design a program of the same complexity may cost 50 thousand or 100 +thousand dollars. By comparison, the cost of dealing with the patent +system is crushing. Or actually designing a program with the same +complexity as the mechanical design of an auto is probably a month's +work. How many parts does an auto have… that is if it is an +auto which doesn't have computers in it.[<a href="#f1">1</a>] There +are not that many parts. That is not to say designing a good one is +easy but just that there are not that many different things in it. +</p> + +<p> +The result is software really is different from other fields because +we are working with mathematical stuff designing something is far, far +easier and the result is that we regularly make systems which are +much, much larger and do so with just a few people. The result is +that the patent system then instead of being close to one product, one +patent, we are in a system where one product involves many, many ideas +which could be patented already. +</p> + +<p> +The best way to explain it by analogy is with symphonies. A symphony +is also long and has many notes in it, and probably uses many musical +ideas. Imagine if the governments of Europe in the 1700's had decided +they wanted to promote the progress of symphonic music by establishing +a European Musical Patent Office that would give patents for any kind +of musical ideas which you could state in words. Then imagine it is +around 1800 and you are Beethoven and you want to write a symphony. +You will find that getting your symphony so that it doesn't infringe +any patents is going to be harder than writing a good symphony. + +<span class="gnun-split"></span>When +you complain about this, the patent holders would say “Ah +Beethoven, you are just bitching because you have no ideas of your +own. All you want to do is rip off our inventions”. Beethoven, +as it happens, had a lot of new musical ideas but he had to use a lot +of existing musical ideas in order to make recognizable music. In +order to make music that listeners could possibly like, that they +could recognize as music. Nobody is so brilliant that he can +re-invent music and make something that people would want to listen +to. <a href="http://en.wikipedia.org/wiki/Pierre_Boulez">Pierre +Boulez</a> said he would try to do that, but who listens to Pierre +Boulez? +</p> + +<p> +Nobody is so brilliant he can re-invent all of computer +science, completely new. If he did, he would make something that the +users would find so strange that they wouldn't want to use it. If you +look at a word processor today, you would find, I think, hundreds of +different features. If you develop a nice new innovative word +processor, that means there are some new ideas in it, but there must +be hundreds of old ideas in it. If you are not allowed to use them, +you cannot make an innovative word processor. +</p> + +<p> +Because the work of software development is so big, the result is that +we don't need any artificial scheme to incentivize new ideas. You +just have people writing software and they will have some new ideas. +If you want to write a program and you want to make it good, so some +ideas will come to you and some you will see a way to use. What used +to happen, because I was in the software field before there were +software patents, was most of the developers would publish any new +ideas that they thought were noteworthy, that they thought that they +might get any credit or respect for. + +<span class="gnun-split"></span>The ideas that were too small or +not impressive enough, they would not publish because that would be +silly. Now the patent system is supposed to encourage disclosure of +ideas. In fact, in the old days, nobody kept the ideas secret. They +kept the code secret, it's true. The code, after all, represented the +bulk of the work. They would keep the code secret and publish the +ideas so that way the employees would get some credit and feel good. +After software patents, they still kept the code secret and they +patented the ideas, so in fact, disclosure has not been encouraged in +any meaningful sense. The same things are kept secret now as what were kept secret before, +but the ideas which used to be published so that we could use them are +now likely to be patented and off-limits for 20 years. +</p> + +<p> +What can a +country do to change this? How should we change the policy to solve +this problem? There are two places you can attack it. One is the place where +patents are being applied for and issued, in the patent office. The +other is when patents are being applied—that is, the question of +what does a patent cover. +</p> + +<p> +Changing the criteria for issuing patents or simply keeping a good +criteria for issuing patents, can work in a country which has not +authorized software patents before, for instance, for the most part, +in Europe. Simply to clearly re-enforce the European Patent Office's +rules which say that software is not patentable. This is a good +solution for Europe. Europe is now considering a directive on +software patents. The directive I suppose may be broader than that +but one of its important implications is for software patents. Simply +by modifying this to say software ideas cannot be patented will keep +the problem out of Europe for the most part, except for some countries +that may have admitted the problem on their own. Unfortunately one of +them being the UK. Unfortunately for you. +</p> + +<p> +That approach won't work in the US. The reason is that the US already +has large numbers of software patents and any change in the criteria +for issuing patents won't get rid of the existing +ones.[<a href="#f2">2</a>] In fact, these patents are not officially +labeled as software patents. I say software patents but what do I +really mean? Patents which might potentially apply to software. +Patents which might potentially get you sued for writing software. + +<span class="gnun-split"></span>The patent office doesn't divide patents into software patents and +other patents. So, in fact, any patent might conceivably get you sued +for writing software if it could apply to some software. So in the US +the solution would have to be done through changing the applicability, +the scope of patents saying that a pure software implementation +running on general purpose computer hardware which does not in itself +infringe the patent, is not covered by any patent and you cannot get +sued for it. That is the other kind of solution. +</p> + +<p> +The first kind of solution, the solution that operates on what types +of patents can be valid is a good solution for Europe to use. +</p> + +<p> +When the US started having software patents, there was no political +debate. In fact, nobody noticed. The software field, for the most +part, didn't even notice. There was a supreme court decision in 1981 +which considered a patent on a process for curing rubber. The ruling +was that the fact that the apparatus included a computer and a program +as part of the process to cure the rubber did not make it +un-patentable. +<span class="gnun-split"></span>The appeals court the next year which considers all +patent cases, reversed the qualifiers. They said the fact that there +is a computer and a program in this makes it patentable. The fact +that there is a computer and program in anything makes it patentable. +This is why the US started having business procedure patents. This is +because the business procedures were carried out on a computer and +that made them patentable. So this ruling was made and I think the +natural order recalculation patent was one of the first or might have +been even the first. Throughout the 80's we didn't know about this. +</p> + +<p> +It was around 1990 that programmers in the US started to become aware +that they were faced with a danger from software patents. So i saw +how the field worked before and how the field worked after. I saw no +particular speed up in progress after 1990. There was no political +debate in the US, but in Europe there has been a big political debate. +Several years ago there was a push to amend the +Munich treaty that established the <a href="http://www.epo.org/"> +European Patent Office</a>. It has a +<a href="http://www.epo.org/law-practice/legal-texts/html/epc/1973/e/ar52.html"> +clause saying that software is not patentable</a>. The push was to +amend that to start allowing software patents. But the community took +notice of this. It was actually free software developers and free +software users who took the lead. +</p> + +<p> +We are not the only ones threatened by software patents. All software +developers are threatened by software patents and even software users +are threatened by software patents. For instance, Paul Heckel, when +Apple wasn't very scared of his threats, he threatened to start suing +Apple's customers. Apple found that very scary. They figured they +couldn't afford to have their customers being sued like that, even if +they would ultimately win. So the users can get sued too, either as a +way of attacking a developer or just as a way to squeeze money out of +them on their own or to cause mayhem. +</p> + +<p> +All software developers and users are vulnerable. But it was the free +software community in Europe that took the lead in organizing +opposition. In fact, twice now the countries that govern the European +Patent Office voted not to amend that treaty. Then the EU took a hand +and the directorates of the EU were divided on the issue. +</p> + +<p> The one whose job is to promote software is against software +patents it seems. They were not in charge with this issue. It is the +open market directorate who is in charge and is lead by somebody who +is in favor of software patents. They basically disregarded public +opinion which has been expressed to them. They have proposed a +directive to allow software patents.[<a href="#f3">3</a>] The French +government has already said they are against it. People who are +working in various other governments in Europe to oppose software +patents and it is vital to start doing so here. </p> + +<p> +According to Hartmut +Pilch, who is one of the leaders in the European struggle against +software patents, the main impetus comes from the <a +href="https://www.gov.uk/topic/intellectual-property/patents">UK +“Intellectual Property” Office</a>. This office +is simply biased in favor of software patents. It had a +public consultation and most of the responses were opposed to software +patents. They then wrote a report saying that people seem to be +content with them, completely disregarding the answers. You see, the +free software community said please send the answers to them and +please send your answers to us too and we'll publish them. So they +published these answers which were generally opposed. You'd have +never guessed that from the report that the UK Patent Office +published. +</p> + +<p> +They (the UK Patent and Trademark Office) use a term that they call +technical effect. This is a term which can stretch tremendously. You +are supposed to think it means a program idea would only be patentable +if it relates closely to specific physical activities. If that is the +interpretation, it would mostly solve the problem. If the only +software ideas that can be patented were those that really did relate +to a particular technical, specific physical result that you might +have patented if you didn't use a program, that would be OK. The +problem is that you can stretch that term. You can describe the +result you get by running any program as a physical result. How does +this physical result different from every other? Well it is as a +result of this computation. The result is that the UK Patent Office +is proposing something that looks like it leads to mostly solving the +problem and really gives carte blanche for patenting almost anything. +</p> + +<p> +The people in the same ministry are also involved in the copyright +issue which really has nothing to do with software patents except that +it is being handled by the same people. It is a question of +interpreting the recent EU copyright directive, a horrible law like +the <a href="http://www.eff.org/issues/dmca">Digital Millennium Copyright +Act in the US</a>. But there is some latitude for countries to decide +how to implement it. The UK is proposing the most draconian possible +way of implementing this directive. You could greatly reduce the harm +that it does by implementing it properly. The UK wants to maximize +the tyrannical effect of this directive. It seems there is a certain +group, the <a href="http://webarchive.nationalarchives.gov.uk/20070603164510/http://www.dti.gov.uk/">Department of Trade and +Industry [archived]</a>, who need to be reined in. It is necessary to put a +check on their activities. Stop their creating new forms of power. +</p> + +<p> +Software patents tie up every software developer and every computer +user in a new in a new form of bureaucrat. If the businesses that use +computers realized how much trouble this can cause for them, they +would be up in arms and I am sure they can stop it. Business doesn't +like being tied up in bureaucracy. +</p> + +<p> +Sometimes, of course, it serves an important purpose. There are some +areas where we wish the UK government did a more careful job in tying +certain businesses up in bureaucracy, like when it involves moving +animals around.[<a href="#f4">4</a>] But in some cases, when it +doesn't serve any purpose except to create artificial monopolies so +that somebody can interfere with software development, squeeze money +out of developers and users, then we should reject it. +</p> + +<p> +We need to make management aware of what software patents will do to +them. Get their support +in <a href="http://www.ffii.org/">fighting against +software patents in Europe</a>. +</p> + +<p> +The battle is not over. It still can be won. +</p> + +<h3>Footnotes</h3> +<ol> + <li id="f1">There are approximately 300-400 unique parts in an + automatic transmission, and a transmission is generally the most + complicated component of an auto. To design a transmission may take + six months to a year, and even then it may take longer to actually + get it built and functioning. However, a program with 500 to 600 + functional parts would have 200 to 300 lines of actual code, and + would probably take a good programmer a day to a week to write, test + and debug.</li> + + <li id="f2">I say “software patents” but what do I + really mean? The U.S. patent office doesn't officially divide + patents into software patents and other patents. So, in fact, any + patent might conceivably get you sued for writing software if it + could apply to some software. Software patents are patents that + might potentially apply to software, patents that might potentially + get you sued for writing software.</li> + + <li id="f3">On 6 July 2005, the European Parliament rejected the + software patent directive by 648 out of 680 votes. However, we must + not forget the issue of software patents, as those who were pressing + for patenting are trying to revive the recently thrown-out + directive. We also have to ensure that the European Patent Office + (EPO) and the national offices in different EU countries stop + conceding patents for software included in other kinds of + inventions.</li> + + <li id="f4">To make it harder for foot-and-mouth disease to + spread.</li> +</ol> + +<hr /> +<blockquote id="fsfs"><p class="big">This essay is published +in <a href="http://shop.fsf.org/product/free-software-free-society/"><cite>Free +Software, Free Society: The Selected Essays of Richard +M. 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