Software patent debate - Definition and Overview

For general information on software patents, see the main article.

There is heated debate as to whether it should be possible to patent software as a matter of public policy.

A particularly active focus of the debate at the present time is the proposed EU Directive on the Patentability of Computer-Implemented Inventions, also known as the "CII Directive" or the "Software Patent Directive", which is scheduled to return to the EU Parliament in 2005.

Arguments for patentability

Arguments commonly given in defense of software patents or in defense of the patentability of computer-implemented inventions (which could be defined differently) include:

• Patenting software inventions promotes investment in research and development.
  • Economic studies such as the US Federal Trade Commission 2003 patent report (http://www.ftc.gov/os/2003/10/innovationrpt.pdf) argue that patent monopolies actually reduce investment.
• If we did not have software patents we would not have technologies like CDs, mobile phones and ABS brakes (Patents4Innovation (http://www.patents4innovation.org/))
  • Software patents are not currently enforceable in Europe but these technologies are certainly available.
• The need for protection is demonstrated by the huge number of software patents filed.
  • This is like saying that the need for thieves is demonstrated by the large number of locks installed.
• Software patents incentive schemes motivate employees to produce patentable ideas. ([1] (http://www.wipo.int/sme/en/e_commerce/pat_help.htm))
  • As opposed to building useful software systems that would directly benefit the company.
• The United States has led in creating companies, creating jobs, because it has had the best intellectual-property system. ([2] (http://insight.zdnet.co.uk/software/windows/0,39020478,39183197,00.htm))
  • The US became dominant in software before software was patentable in the US. They are now loosing that lead.
• Software patents can increase the valuation of small companies.([3] (http://www.wipo.int/sme/en/e_commerce/pat_help.htm))
  • Certainly, and a law suite for unintentional software patent infringement can destroy small companies.
• A patent must publicly disclose the invention and so educate other inventors.
  • The very obscure language makes "published" patents extremely difficult to search and review, even by patent professionals.
• Software invention requires considerable investment that should be protected.
  • Copyright adequately protects that investment. The risk of unforseeable patent infringement strongly discourages investment.
• International treaties such require software to be patented, see Software patents under TRIPs Agreement.
  • TRIPS requires patents to be enforced. It does not mandate that software should be patented.
• It is inventions that should be encouraged and patentable. The distinction between hardware and software is academic.
  • Software patent monopolies clearly do not add net economic value to society. Patents may add value for other fields of endeavour such as pharmaceuticals.
• Organizations have the right to protect their intellectual property.
  • Certainly, but the question is whether software patents should be a type of intellectual property in the first place.

Arguments against patentability

Opponents of software patents argue that:

• Traditional copyright has provided sufficient protection to facilitate massive investment in software development. ([4] (http://www.nosoftwarepatents.com/en/m/basics/index.html))
  • Copyright can be easily circumvented by reimplementing code because it does not place restrictions on the underlying ideas.
• Independent economic studies argue that patents are not productive. (See Software patents#Economic_Studies)
  • These studies are generally written by economists that do not understand patents or copyrights.
• Software is fundamentally about actually building and marketing systems rather than "inventing" individual cute ideas.
  • The whole is the sum of the parts.
• A vast number of trivial software patents have been granted by government patent offices that directly profit by granting them. ([5] (http://www.nosoftwarepatents.com/en/m/basics/inflation.html))
  • Public servants are generally honerable and not self serving.
• Most patented inventions have been or could easily be independently invented due to their trivial "inventive step".
  • If this was true then they would have already been invented (and patented) by someone else.
• Developers cannot avoid patents of standards and interfaces even though the invention may not be useful otherwise.
  • Being used in a standard demonstrates the high value of a patent.
• Legal actions involving nebulous intellectual property issues are very expensive, slow and unpredictable.
  • They can be avoided by paying royalties that are properly due to patent holders.
• It is impossible to tell whether claims of patent infringement are valid due to their obscure language and weak examination.
  • Patent attorneys are experts at determining these issues.
• Enterprises that receive numerous dubious patent infringement notices cannot afford to simply pay what each patent holder demands.
  • If an enterprise uses a large amount of other people's intellectual property they should expect to pay high fees.
• Software patents introduce substantial business risk that discourages investment.
  • This risk is avoided if companies commission professional patent searches of the publicly available databases.
• Software patents are likely to destroy open source and small to medium software enterprises (SMEs) that do not have a large defensive patent portfolio.
  • If SMEs are not as inventive as large corporations then society would benefit from their removal.

What proposals mean

A confusing aspect of the debate is that it is unclear what various proposals actually mean. For example, proponents of the current EU Directive on the Patentability of Computer-Implemented Inventions say that this directive ensures that software will remain unpatentable. Indeed, the head of the UK Department of Trade and industry Lord Sainsbury said it would "not change the boundaries of what is currently patentable" (The Times 17Jan05 (http://www.timesonline.co.uk/printFriendly/0,,1-5-1443489,00.html)).

But opponents of software patents say that this is plainly not true. The directive says software would not be patentable unless the inventions have a "technical character". In practice this would mean any useful software would in fact be patentable. It would seem odd to support an unpopular directive that really "did not change the boundaries...". A detailed analysis of this directive can be found at FFII Directive Analysis (http://swpat.ffii.org/papers/europarl0309/cons0401/tab/index.en.html).

In early 2005 India used a similar trick. Computer programmes per se remain unpatentable but the clause "other than its technical application to industry or a combination with hardware" has been added. This essentially makes any useful software patentable. (Indian Government Reference (http://www.indianembassy.org/Economy/1.htm), FFII (http://swpat.ffii.org/log/04/nath12/index.en.html).)

This technique is effective because it focuses the debate onto the meaning of obscure legalistic clauses and away from the fundamental issues of whether software patents acutally provide a net economic benefit to society.

Quotes supporting patentability

Bill Gates (Microsoft) 2005

...There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises. They don't think that those incentives should exist... I'd be the first to say that the patent system can always be tuned...the United States has led...because we've had the best intellectual-property system. (ZDNet (http://insight.zdnet.co.uk/software/windows/0,39020478,39183197,00.htm))

Harald Hagedorn (SAP Patent Department) 2002

...software is a multi-billion dollar industry with expected growth-rates of 10% p.a. during the next years ... like in any other industry such growth can only be sustained if patents are available. (FFII (http://swpat.ffii.org/penmi/2002/europarl11/index.en.html))

Quotes against patentability

Bill Gates (Microsoft) 1991

Internal memo

If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. ... The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors. (Lawrence Lessig (http://www.oreillynet.com/pub/a/policy/2002/08/15/lessig.html?page=2))

Oracle 1994

Submission to USPTO

Oracle Corporation opposes the patentability of software. The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments....([6] (http://www.base.com/software-patents/statements/oracle.html))

Prof. Hasso Plattner when Chair of SAP Board

...SAP would not need patents to protect its investments and is collecting them only as a defensive weaopon to prepare for litigation in the US... (FFII (http://swpat.ffii.org/penmi/2002/europarl11/index.en.html))

Pierre Haren, board director of ILOG 2001

... The american experience of software patents is a disaster. Before imitating them we should rather try to see if they won't agree to change their system... (French (http://www.industrie.gouv.fr/observat/innov/carrefour/tabsyn.htm) (from FFII))

Robert Barr (CISCO Intellectual Property Department) 2002

...The time and money we spend on patent filings, prosecution, and maintenance, litigation and licensing could be better spent on product development and research leading to more innovation... (FFII (http://swpat.ffii.org/vreji/quotes/index.en.html))

Douglas Brotz (Adobe) 1994

...I believe that software per se should not be allowed patent protection.... (FFII (http://swpat.ffii.org/vreji/quotes/index.en.html))

Jim Warren (Autodesk) 1994

...There is absolutely no evidence, whatsoever -- not a single iota -- that software patents have promoted or will promote progress... (FFII (http://swpat.ffii.org/vreji/quotes/index.en.html))

Mitch Kapor 1994 (Founder of Lotus 123)

Because it is impossible to know what patent applications are in the application pipeline, it is entirely possible, even likely, to develop software which incorporates features that are the subject of another firm's patent application. Thus, there is no avoiding the risk of inadvertently finding oneself being accused of a patent infringement simply because no information was publicly available at the time which could have offered guidance of what to avoid. ([7] (http://www.base.com/software-patents/kapor.html))

Sites in favor of the patentability of computer-implemented inventions

• Patents4Innovation.org (http://www.patents4innovation.org), a web site to promote innovation and competition in e-Europe.
• EICTA web site (http://www.eicta.org) (see also: European Information, Communications and Consumer Electronics Technology Industry Associations or EICTA)
• Article (http://www.spectrum.ieee.org/WEBONLY/publicfeature/jun04/0604aca.html) from IEEE on the business model of Acacia Technologies Group.
• iusmentis.com (http://www.iusmentis.com/patents/software/epc/) is a web site from a patent attorney. It contains a good explanation of how patents work.

Sites against software patents

• Foundation for a Free Information Infrastructure (FFII)
  • Webshop example (http://webshop.ffii.org/) Demonstrates the extent of software patents.
  • Opposition by FFII to software patent legislation in Europe (http://swpat.ffii.org/papers/eubsa-swpat0202/index.en.html)
  • The report from the hearings of the FTC (http://www.ffii.org.uk/ftc/ftc.html) a summary of what was said to the FTC.
• No Software Patents - a web campaign supported by companies (1&1, Red Hat, MySQL) (http://www.nosoftwarepatents.com)
• The History of Software Patents (http://www.bitlaw.com/software-patent/history.html) from BitLaw.
• Free Software Foundation: transcript and audio of Software patents – Obstacles to software development (http://www.cl.cam.ac.uk/~mgk25/stallman-patents.html) which Richard Stallman gave about software patents (the audio archive linked contains two more speeches about software patents)
• Irish Free Software Organisation (IFSO) (http://ifso.ie/)
• Liberal economists
• competition law bodies (BEUC)
• European SME groups (UEAPAME, CEA-PME, dmmv, DIHK, WKO, ...)
• EU campaign NoEpatents (Eurolinux-alliance) (http://www.noepatents.org) with more than 360 000 European signatures one of the largest Internet campaigns ever.
• League for Programming Freedom
• Sequential Innovation, Patents, and Imitation (http://www.researchoninnovation.org/patent.pdf) by James Bessen and Eric Maskin
• Software Patents vs. Free Software (http://perens.com/Articles/Patents.html) by Bruce Perens
• Report on Software Patentability by Conseil des Mines Study Group - Stimulating Innovation in the Information Society (http://www.pro-innovation.org/rapport_brevet/brevets_plan-en.pdf)
• SWpat information page by ESR Pollmeier (German SME), opposed to swpat (http://www.esr-pollmeier.de/swpat/index_en.html)
• AEL (Association Electronique Libre) Wiki Software Patent Main Project page (http://wiki.ael.be/index.php/FightingSWPatents)
  • on patent history, e.g. Diamond vs. Diehr (http://wiki.ael.be/index.php/PatentHistory)
  • Coverage of Brussels 27 aug 2003 demo, AEL, Belgium (http://wiki.ael.be/index.php/BigDemo27aug)
  • List of local campaign sites (http://wiki.ael.be/index.php/PatentInformationLeafletsLinks)
• http://www.softwarepatents.co.uk/
• attac (Globalisation critics)
• W3C: Letter from Tim Berners-Lee to Rogan (http://www.w3.org/2003/10/27-rogan.html) (about Eolas Plugin Patent):
• Code Liberty (http://codeliberty.org) is a web site dedicated to the rights of software authors, and argues that patents are incompatible with the Berne Copyright Convention, and the WIPO and WTO treaties.
• Us action against Software patents (http://lists.ffii.org/mailman/listinfo/us-parl)
• Libro blanco del software libre (http://www.libroblanco.com) FOSS situation in Spain
• Steven Young's legal advice (http://www.advogato.org/article/7.html)