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The problem with software patents
Simply put there are a great many problems
concept of software patents, let alone the practicality. Those of us
who follow news within the IT industry are forever seeing 'X sues Y for
infringing patent.' Does this mean that all the companies in the IT
sector are trying to steal other peoples work and ideas? No, the
problem is patents are being granted on concepts that they should not.
This does also affect non-software patents to a point, however software
patents seem to be the most affected by this.
Currently in the UK (and as far as I know Europe as a whole) software
patents are not legally enforceable. This does not mean they do not
exist, Software patents have been granted, and still are. However you
cannot currently back them up in a court of law. Now lets take a look
at the Patent System in the US so that we may see exactly why we do not
want software patents.
The concept of software patents began around about 1989 and evolved
through the 90's. Before then you could only patent things that were
hardware based, so whilst you could patent a router, the embedded
software itself was not patentable. Unfortunately (some might argue
different) a court decided that in fact Software could be seen as an
extension of hardware, and allowed a software patent to stand firm
through the litigation that was taking place. This set a legal
precedent, and since then there has been an explosion of software
I once read an article (can't find the link though) that suggested that
there are now two types of patent holders. Those that hold a vast
amount of patents to defend themselves by means of counter claims
against an 'aggressor' and what are frequently called 'patent trolls.'
Patent trolls are companies (or individuals) who obtain patents, but
release no software and often even no hardware at all. They simply lie
in wait as it were. They will then begin litigation against a company
for infringing their patent, the targetted company has very little
defence in as much as they cannot counter claim because the troll makes
and releases nothing. Patent Trolling is effectively this centuries
The USPTO (and others) appear to be very bad at searching for prior
art. In the case of Firestar v RedHat the concept embodied within the
patent is not only obvious, but has been used for years. The fact that
within 10 minutes of this article being posted, prior art was being
suggested, really does not bode well for the Patent application
examiner who was supposed to have checked for prior art.
There are many, many examples of software patent litigation in the US,
just have a look through Groklaw
where PJ does some fantastic work, for some prime examples. As was
mentioned in the comments section to the patently obvious article
referenced above, Software Patents stifle innovation. I think this
quote from that article sums it up quite well;
Patenting software is like patenting
phrases in literature, or subtle
plot points. Having a patent on "the protagonist crosses the street and
sees a breathtaking woman" wouldn't help advance the arts and sciences
one bit, and it's not clear why patents on software are any different.
The reason software is so advanced today is that we had decades in
which software was not retarded by patents. Microsoft would never have
existed if software was commonly patented in the seventies and
eighties, and neither would the vast majority of software companies in
existence today. Video game?
Sorry, the idea of an animated bullet reacting to on-screen contact
with an animated character image was patented, so we'd have all had to
wait for twenty years after Pong before anyone could write the next
video game without Nolan Bushnell's leave.
As crazy as it sounds, that
scenario was entirely possible. One would hope that it would never
occur today as there are reams of prior art. Software is not about one
good idea, for a system to work you require hundreds if not thousands
of ideas merged together.
It would be fascinating to see what people can do when they are not
restrained by software patents, the human mind is naturally very
creative, and given the opportunity people could create some
It is also worth mentioning that Microsofts Steve Ballmer has already said that
he may use Software Patents against Linux. for big Vendors like MS,
patents are an ideal way to keep competitors out of the market. It is
not currently possible to win market share from MS through usability
and features, if you get too close you will find yourself on the wrong
end of a patent infringement claim. Patents are intended to create
goverment mandated monopolies for a short time, however they are in
fact now supporting monopolies for a much longer time.
As many know, the Software Patents Directive in the EU was overturned.
Then there was a review of the Patent system which had many (including
myself) worried about another attempt at introducing software patents.
A statement was released to say that Software patents will not be
included in the review, and that it is more about achieving 'harmony'
between the US patent office and the other patent offices within the EU.
However this does not mean the issue has gone away, those that stand to
benefit from it will just keep on pushing the issue. Ballmers comments in 2004 could lead you to
believe he has a strategy in mind for making everyone adopt their
From the European perspective there is another issue if software
patents are allowed, it will potentially destroy European business. Not
only do US companies hold most of the patents, but they have the
experience and the knowledge of patents from their own system. European
businesses will be put at a major disadvantage if software Patents are
It is worth noting that there are 13,000 or so Software patents in the
EU already, but that is because they involve an 'inventive step', these
would be wiped out if a new system was brought into place. The fact
that there are already 13000 patents out there on software related
inventions displays that the system works quite well as it is, and is
not in need of reform.
In conclusion, i think it is safe to say that we should learn
from the US's mistake and ensure that software patents can not be
granted, especially on the scale that they are in America. The open
source community has displayed that collaboration is far far better,
Patents stifle this, and so stifle innovation. If patents are allowed
then programmers will never be able to just code, they will have to
ensure that what they are inventing does not breach any patents. This
will in turn cost businesses more money as they will ahve to get their
legal departments to check it out as well.
All in all a very bad idea
Shifty_ben - Posted 12:09 30/06/2006