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+ 24. Software Patents and Literary Patents +

+ + + + + + + + +

+ When politicians consider the question of software patents, they are +usually voting blind; not being programmers, they don’t understand +what software patents really do. They often think patents are similar +to copyright law (“except for some details”)—which +is not the case. For instance, when I publicly asked + + + Patrick +Devedjian, then Minister for Industry in + + + France, how France would vote +on the issue of software patents, Devedjian responded with an +impassioned defense of copyright law, praising Victor Hugo for his +role in the adoption of copyright. (The misleading +term “intellectual property” promotes this confusion—one of the reasons it +should never be used.) +

+

+ Those who imagine effects like those of copyright law cannot grasp the +disastrous effects of software patents. We can use Victor Hugo as an +example to illustrate the difference. +

+

+ A novel and a modern complex program have certain points in common: +each one is large, and implements many ideas in combination. So let’s +follow the analogy, and suppose that patent law had been applied to +novels in the 1800s; suppose that states such as France had permitted +the patenting of literary ideas. How would this have affected Victor +Hugo’s writing? How would the effects of literary patents compare +with the effects of literary copyright? +

+ + +

+ Consider Victor Hugo’s novel + + Les Misérables. + + Since he +wrote it, the copyright belonged only to him. He +did not have to fear that some stranger could sue him for copyright +infringement and win. That was impossible, because copyright covers +only the details of a work of authorship, not the ideas embodied in +them, and it only restricts copying. Hugo had not copied + + Les +Misérables, + + so he was not in danger from copyright. +

+

+ Patents work differently. Patents cover ideas; each patent is a +monopoly on practicing some idea, which is described in the patent +itself. Here’s one example of a hypothetical literary patent: +

+ + + +

+ If such a patent had existed in 1862 when + + Les Misérables + + was +published, the novel would have conflicted with all three claims, +since all these things happened to Jean Valjean in the novel. Victor +Hugo could have been sued, and if sued, he would have lost. The novel +could have been prohibited—in effect, censored—by the +patent holder. +

+

+ Now consider this hypothetical literary patent: +

+ +

+ + Les Misérables + + would have been prohibited by that patent too, +because this description too fits the life story of Jean Valjean. And +here’s another hypothetical patent: +

+ +

+ Jean Valjean would have been forbidden by this patent too. +

+

+ All three patents would cover, and prohibit, the life story of this one +character. They overlap, but they do not precisely duplicate each other, +so they could all be valid simultaneously; all three patent holders +could have sued Victor Hugo. Any one of them could have prohibited +publication of + + Les Misérables. + +

+

+ This patent also could have been violated: +

+ +

+ through the name “Jean Valjean,” but at least this patent +would have been easy to avoid. +

+

+ You might think that these ideas are so simple that no patent office +would have issued them. We programmers are often amazed by the +simplicity of the ideas that real software patents cover—for +instance, the + + + European Patent Office has issued a patent on the +progress bar, and a patent on accepting payment via credit cards. +These patents would be laughable if they were not so dangerous. +

+

+ Other aspects of + + Les Misérables + + could also have +run afoul of +patents. For instance, there could have been a patent on a +fictionalized portrayal of the Battle of Waterloo, or a patent on +using Parisian slang in fiction. Two more lawsuits. In fact, there +is no limit to the number of different patents that might have been +applicable for suing the author of a work such as + + Les +Misérables. + + All the patent holders would say they deserved a +reward for the literary progress that their patented ideas represent, +but these obstacles would not promote progress in literature, they +would only obstruct it. +

+

+ However, a very broad patent could have made all these issues +irrelevant. Imagine a patent with broad claims like these: +

+ +

+ Who would the patent holders have been? They could have been +other novelists, perhaps Dumas or Balzac, who had written such +novels—but not necessarily. It isn’t required to write a +program to patent a software idea, so if our hypothetical literary +patents follow the real patent system, these patent holders would not +have had to write novels, or stories, or anything—except patent +applications. Patent parasite companies, businesses that produce +nothing except threats and lawsuits, are booming nowadays. +

+

+ Given these broad patents, Victor Hugo would not have reached +the point of asking what patents might get him sued for using the +character of Jean Valjean, because he could not even have considered +writing a novel of this kind. + + + + + + +

+

+ This analogy can help nonprogrammers see what software patents +do. Software patents cover features, such as defining abbreviations in +a word processor, or natural order recalculation in a spreadsheet. +Patents cover algorithms that programs need to use. Patents cover +aspects of file formats, such as Microsoft’s + + + OOXML format. + + + MPEG 2 +video format is covered by 39 different US patents. +

+

+ Just as one novel could run afoul of many different literary patents at +once, one program can be prohibited by many different patents at once. +It is so much work to identify all the patents that appear to apply +to a large program that only one such study has been done. A 2004 study of +Linux, the + + + + + kernel of the GNU/Linux operating system, found 283 +different US software patents that seemed to cover it. That is to +say, each of these 283 different patents forbids some computational +process found somewhere in the thousands of pages of source code of +Linux. At the time, Linux was around 1 percent of the whole +GNU/Linux system. How many patents might there be that a distributor +of the whole system could be sued under? +

+ + +

+ The way to prevent software patents from bollixing software +development is simple: don’t authorize them. This ought to be easy, +since most patent laws have provisions against software patents. They +typically say that “software per se” cannot be patented. +But patent offices around the world are trying to twist the words and +issuing patents on the ideas implemented in programs. Unless this is +blocked, the result will be to put all software developers in danger. + + +

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