has been drawn to the SCO v. IBM case. Having started out
as a case about breach of contract, it is now about all three key areas
of intellectual property law: copyright law (was
code illegally copied from Unix into Linux?), patent law (did SCO violate IBM’s patents?),
and trademark law (who owns
‘UNIX’?).
Most press coverage centers on the copyright law issues, but
this is where the playing field is level and the free and open
source community is strong. It is the area of patent law where the
odds are stacked heavily in favor of large, proprietary software
firms and against all other parts of society.
Forgoing all nuance, the heart of the matter is that software
patents are currently illegal in EU and legal in U.S. In the U.S.,
ill-conceived case law of the lower courts needs to be replaced by
well-thought-out statute. Experience in the EU has shown that this
can be achieved through focused, sustained community action. It is
now time for the U.S. community to act.
Why software patents are bad
Patents are a temporary monopoly awarded to inventors in
exchange for the publication of their invention. Patents are
believed to accelerate innovation, benefiting all society.
You may
be inclined to think that banning software patents will rob
hard-working software inventors of the fruits of their labor. This
is not the case for several reasons:
[1] No patents may be issued on abstract ideas (as these are more usefully
protected by copyright)
From the authors of the U.S. constitution on, abstract ideas and expressions thereof have been
excluded from patentability. One cannot patent books, paintings,
music, sculptures, mathematical algorithms, and the like. Software
methods, algorithms, data structures, and APIs are just the same.
Expressions of abstract ideas are justly and properly protected by
copyright law. Can you imagine that “Romeo and Juliet” could not
have been written because
Christopher Marlowe happened to have a patent on a “story about impossible love
between two youngsters of disparate backgrounds”?
[2] Software patents do not accelerate innovation
Patents are supposed to accelerate innovations. Software
patents have no such effect. The League for Programming Freedom
(i.e. Richard Stallman) has put together a manifesto explaining why this is
the case. The main reason is that innovation in software takes
place in many small steps for which sensible ‘prior art’ review is
impossible in practice — vis examples here and
here.
Recent research by leading economists has
confirmed that software patents indeed have slowed down software innovation in the U.S. In a recent speech, Andy Grove named software patents as a major detractor for the U.S. software industry.
[3] Software patents threaten public infrastructure
Some software becomes widely used in the public arena. If such a
piece of software accidentally and unknowingly violates a patent, it
becomes in the interest of the patent holder to silently wait until
the software has become ubiquitous and switching barriers
insurmountable, and then try to levy a tax on all users. Just in
the area of Web browsers this has already happened several times: with
links LZW compression, hyperlinks, and of course the recent Eolas business. In the case of the Eolas
patent, W3C director Tim Berners-Lee had to
call for the U.S. Undersecretary of Commerce for Intellectual Property to
overrule the fact-finding of the lower courts and to have the
patent invalidated. It seems his voice got heard.
[4] Software patents benefit only large corporations (and
their patent lawyers)
Patents cost up to $25,000 to properly file and millions to
police and defend. Such resources are not available to small and
medium business or open source projects. Perhaps this problem is
best explained by Bill Gates. In 1991, when Microsoft wasn’t yet
the powerful monopolist it is today, he was worrying:
“I feel certain that some large company will patent some obvious
thing related to interface, object orientation, algorithm,
application extension or other crucial technique. If we assume this
company has no need of any of our patents, then they have a 17-year
right to take as much of our profits as they want. The solution to
this is patent exchanges with large companies and patenting as much
as we can. Amazingly we haven’t done any patent exchanges that I am
aware of.”
Considering that IBM
had just shaken down Sun Microsystems, he
was right to worry. My estimate is that large IT corporations are
less than 3% of the U.S. economy. The other 97% of U.S. society is
basically being held over a barrel.
Now if icons as diverse as Jefferson, Stallman, Berners-Lee,
Gates, and Grove all agree that software patents are bad, wouldn’t
you agree that they’ve got a point?
A comparison between the EU and the U.S.
Like the U.S., Europeans have long considered abstract ideas to be
outside the scope of patentability. This was reconfirmed
in the 1974 European Patent Convention. Article 52 of this treaty bans
patents on software.
Despite this clear ban, the European Patent Office started to
issue patents on software in ever larger numbers during the 1990s,
mostly to U.S. corporations. Some of these patents (mostly involving
cases where software was part of a larger invention) were
challenged in court and the resulting case law was contradictory
and obscure. Hence new statute was needed to clarify the law.
An initial, pro-patent Directive (EU framework law) was
drafted by the BSA for the European Commission and introduced to
Parliament with minor changes by representative Arlene McCarthy (Socialist,
UK). After intense lobbying by the free and open source community,
the draft was completely rewritten by Parliament to reaffirm the ban on patents on pure software. This draft
Directive is now progressing through the EU’s Byzantine lawmaking
process and only aggressive backroom lobbying by (often US-based)
special
interests could prevent the revised draft from becoming law.
Prior to 1981, the United States Patent and Trademark Office
(USPTO) routinely denied software patents. In both Gottschalk v.
Benson and Parker v. Flook the Supreme Court
suggested that “difficult questions of policy concerning the kinds
of programs that may be appropriate for patent protection and the
form and duration of such protection can be answered by Congress.â€
In 1981, further to the Diamond v. Diehr case, the 5-4
majority opinion of the court was that software which was used to
control a physical process was patentable (i.e. the same conclusion
as embodied in the revised EU Directive). This decision was then
interpreted by the U.S. Patent Office as a carte blanche for
patenting all kinds of software and business methods. Despite the
Supreme Court’s suggestion for Congress to step in, Congress has
not yet addressed this highly controversial topic with proper
statute.
So what does this mean to you? Let’s look at fonts. The most
common font system today is TrueType. TrueType fonts contain
so-called “hints” that greatly improve font rendering at small
sizes. The hints are represented by byte codes that are patented in the U.S. As a result, EU
citizens can legally enjoy high-quality fonts on their Linux
system, provided they respect the copyrights on the font files. U.S.
citizens are stuck with substandard font quality unless they break
the law.
You think this is a minor inconvenience? Remember the words of
Benjamin Franklin: “They that can give up essential liberty to
obtain a little temporary safety deserve neither.”
A call to action
Making the choice whether software can be patented is a
political decision, not a legal one. In Europe, a bad draft law was
overturned by community action coordinated by Hartmut Pilch and
the Foundation for a Free Information Infrastructure. I believe that the U.S. software community can be successful in
overturning the current ill-conceived case law of the lower courts
and can get Congress to ban software patents, if it applies the
lessons learned by Hartmut Pilch and the FFII:
- Get as many signatures (of U.S. citizens) as possible on a petition that outlines what we want.
The Eurolinux Alliance rallied nearly 300,000 EU
citizens. - Get CEOs and other managers of small IT businesses to support
the cause. In the EU, more than 2,000 such
businesses were mobilized to act. - Get organizations representing the interests of all small and
medium-sized enterprises behind you. In the EU,
organizations representing
over 2 million SMEs supported banning software patents. - Get leading economists to support the economic argument against
software patents. You can start by contacting the people who wrote
an
open letter to the EU Parliament. - Lobby your congressmen, your senators, and your state
legislators, and lobby them hard. Several EU representatives said
they had never been lobbied so vigorously as for the ban on
software patents.
The last is perhaps the most important. In the end, politicians
do listen to their voters, especially if lobbied over an issue they
can actually solve.
To paraphrase Abraham Lincoln, it is now time
to act and to ensure that “software of the people, by the people,
and for the people shall not perish from the earth.” Perhaps it
would be a natural role for the Free Software Foundation, for
the Electronic
Frontier Foundation, or for the Public Patent
Foundation to start coordinating
community efforts.
U.S. community, let’s roll!
Paul Ruiz is an EU citizen and runs a small software business in
Europe.
