The idea of a patent is to give the inventor time to make money from it before others can use it. Many of the items we use each day have been patented and made their inventors a lot of money. The light bulb, the vacuum cleaner, and windscreen wipers are all well-known examples. Each took their inventor time to develop. James Dyson made 5,127 prototypes before he perfected his cyclone vacuum cleaner.
But when it comes to software, it is not applications that are generally patented but algorithms like the infamous Unisys LZW patent. Before the patent was known, Compuserve developed the gif format for images. Until a couple of years ago, if you wanted to write software that used gif files you had to licence the compression algorithm from Unisys for about $5,000.
The png format was created to provide an alternative to gif files but has never entirely succeeded- gifs could be animated while pngs couldn't. Free software like the Boutell graphic generating GD library for many years had gif support removed and only when the patent expired was the support reintroduced.
- For more about Data Compression See What is Data Compression?
So why are Software Patents Bad?
Because they allow developers and companies to be extorted or even stopped from selling their applications. Unlike the real physical world, an experienced developer can come up with lots of ideas and algorithms, and unless you are a patent lawyer and familiar with patent searches, it is possible that one or more of the algorithms you used has been patented.For instance graphical displays can show a cursor by using an xor operation (Exclusive OR) to make the cursor appear and then disappear. The Timex/Sinclair Spectrum home computer used that method back in the early 1980s. An application of a few million lines of code may use tens of thousands of algorithms. Checking these for patent infringements would possibly take longer than creating the application.
Legal Threats
So if you are a small company, one day you might get approached by a lawyer. “Our client asserts that your application xyz infringes one or more of my client's patents. They demand that you either licence those patents from my client- at cost of say $50,000 per annum or cease selling your application.Even if you decide to contest this, you'll need a war fund of at least couple of million dollars. If you haven't got this, cough up or stop selling.
It's possible that the company suing you might have been set up specifically to buy a patent and then go after small and medium companies and nail them in this way. They see it as an opportunity to extort and don't care that they are chilling innovation; the opposite effect to that which patents were intended to provide.
Bigger companies usually have the financial resources to fight. Some of the big corporations avoid any such difficulties by cross licensing their patents with each other. Sometimes though they still have their problems. Consider Microsoft and the EOLAS Patent.
Microsoft itself has many patents and appears willing to use them against for example Open Source software. They haven't said they will sue anyone but have dropped hints that they might. Microsoft are using FUD (Fear, Uncertainty and Doubt) to try and scare people aware from Linux and Open Source.
Software Patents were not allowed until the early 80s when the US Patent Office (USPTO) allowed a patent on software used in a rubber processing machine. That's when the "Gold Rush" began. Unfortunately, the USPTO's staff through inexperience or pressure to process applications allowed many software patents through that were obvious or used prior art and should not have been allowed.
Computers Scientist's Opposition
The view of many, including computer scientists like Professor Donald Knuth is that patents on software are just wrong. You can read his letter to the US Patent Office which includes this quote “When I think of the computer programs I require daily to get my own work done, I cannot help but realize that none of them would exist today if software patents had been prevalent in the 1960s and 1970s.“.Ironically, in light of Microsoft's deal with Novell, Bill Gates of Microsoft has already echoed this - he said that if software patents had existed when Microsoft was set up they would not have been able to grow to the size they are now.
“Had Dan Bricklin, the creator of VisiCalc, the spreadsheet that gave people a reason to buy a personal computer, obtained a patent covering the program in 1979, Microsoft would not have been able to bring out Excel until 1999. Nor would Word or PowerPoint have appeared if the companies that had brought out predecessors obtained patent protection for their programs.” That's a quote from in the New York Times
The Electronic Freedom Foundation (EFF) has a list of ten patents that it wants busted. You can see these on their web site.
The European Perspective
In Europe the pressure for software patents has come mainly from large multinationals, often Japanese and US based corporations that hold extensive patent portfolios. If Europe was “opened up” to software patents then they could extort their patent licensing fees from many companies. Their big lie is that it's about increasing innovation and that they can't innovate without it. For more on this see this comprehensive list of problems caused by software patents.For programmers, patenting software is analogous to composers patenting sequences of notes in music or writers patenting words or phrases. That is why many consider software patents to be evil, as it directly threatens what they do.
These organisations campaign against software patents. If you feel strongly about them, why not join them!
- In the USA Electronic Freedom Foundation
- In Europe The Foundation for a Free Information Instructure
