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 <h2>Patent Reform Is Not Enough</h2>
 <div class="thin"></div>
 
 <p>
 When people first learn about the problem of software patents, their
 attention is often drawn to the egregious examples: patents that cover
 techniques already widely known.  These techniques include sorting a
 collection of formulae so that no variable is used before it is
 calculated (called &ldquo;natural order recalculation&rdquo; in
 spreadsheets), and the use of exclusive-or to modify the contents of a
 bit-map display.</p>
 
 <p>
 Focusing on these examples can lead some people to ignore the rest of
 the problem.  They are attracted to the position that the patent
 system is basically correct and needs only &ldquo;reforms&rdquo; to
 carry out its own rules properly.</p>
 
 <p>
 But would correct implementation really solve the problem of software
 patents?  Let's consider an example.</p>
 
 <p>
 In the early 90s we desperately needed a new free program for
 compression, because the old de-facto standard &ldquo;compress&rdquo;
 program had been taken away from us by patents.  In April 1991,
 software developer Ross Williams began publishing a series of data
 compression programs using new algorithms of his own devising.  Their
 superior speed and compression quality soon attracted users.</p>
 
 <p>
 That September, when the FSF was about a week away from releasing one
 of them as the new choice for compressing our distribution files, use
 of these programs in the United States was halted by a newly issued
 patent, number 5,049,881.</p>
 
 <p>
 Under the patent system's rules, whether the public is allowed to use
 these programs (i.e., whether the patent is invalid) depends on
 whether there is &ldquo;prior art&rdquo;: whether the basic idea was
 published before the patent application, which was on June 18, 1990.
 Williams' publication in April 1991 came after that date, so it does
 not count.</p>
 
 <p>
 A student described a similar algorithm in 1988-1989 in a class paper
 at the University of San Francisco, but the paper was not published.
 So it does not count as prior art under the current rules.</p>
 
 <p>
 Reforms to make the patent system work &ldquo;properly&rdquo; would
 not have prevented this problem.  Under the rules of the patent
 system, this patent seems valid.  There was no prior art for it.  It
 is not close to obvious, as the patent system interprets the term.
 (Like most patents, it is neither worldshaking nor trivial, but
 somewhere in between.)  The fault is in the rules themselves, not
 their execution.</p>
 
 <p>
 In the US legal system, patents are intended as a bargain between
 society and individuals; society is supposed to gain through the
 disclosure of techniques that would otherwise never be available.  It
 is clear that society has gained nothing by issuing patent number
 5,049,881.  This technique was going to be available anyway.  It was
 easy enough to find that several people did so at around the same
 time.</p>
 
 <p>
 Under current rules, our ability to use Williams's programs depends on
 whether anyone happened to publish the same idea before June 18, 1990.
 That is to say, it depends on luck.  This system is good for promoting
 the practice of law, but not progress in software.</p>
 
 <p>
 Teaching the Patent Office to look at more of the existing prior art
 might prevent some outrageous mistakes.  It will not cure the greater
 problem, which is the patenting of every <em>new</em> wrinkle in the use
 of computers, like the one that Williams and others independently
 developed.</p>
 
 <p>
 This will turn software into a quagmire.  Even an innovative program
 typically uses dozens of not-quite-new techniques and features, each
 of which might have been patented.  Our ability to use each wrinkle
 will depend on luck, and if we are unlucky half the time, few programs
 will escape infringing a large number of patents.  Navigating the maze
 of patents will be harder than writing software.  As <cite>The
 Economist</cite> says, software patents are simply bad for business.</p>
 
 <h3>What you can do to help</h3>
 
 <p>
 There is a massive effort in Europe to stop software patents.  Please
 <!-- [Dead as of 2019-03-23] support <a href="http://stopsoftwarepatents.eu/">this
 petition</a> for a Europe free of software patents, and --> see <a
 href="https://ffii.org/"> the FFII web site</a> for full details of
 how you can help.</p>
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