Software patent debate

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

A particularly active focus of the debate at the present time is the proposed European Union 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 argue that patent monopolies actually reduce investment.
• * Patents are intended to protect investment in manufacturing equipment/process, not in R&D. Patents do not provide anything like reasonable protection for R&D investment.
• If we did not have software patents we would not have technologies like CDss, mobile phones and ABS brakess.
• * 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.
• * The huge number of software patents filed is caused by (large) software companies feeling that they need to protect themselves against the threat of competitors using patents as weapons against them.
• Software patents incentive schemes motivate employees to produce patentable ideas.
• * 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.
• * The U.S. became dominant in software before software was patentable in the U.S. It is now losing that lead.
• * The U.S. patent system has caused serious harm to small companies in the U.S. and has allowed emergence of litigation-only companies that attempt to extract patent revenue without producing any real value.
• Software patents can increase the valuation of small companies.
• * Certainly, and a lawsuit 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.
• * This disclosure does not have its intended effect for software, because source code is not required to be disclosed.
• 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 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.
• * The distinction between hardware and software is essential, because for software there is no concept of manufacturing. For hardware, manufacturing cost amounts for majority of cost. This is not the case for software, where R&D costs dominate.
• 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.
• * "Intellectual property" does not actually mean anything concrete. It is not clear what is the property that is being protected.
  

  Arguments against patentability

  
  Opponents of software patents argue that:

• Traditional copyright has provided sufficient protection to facilitate massive investment in software development.
• * Copyright can be easily circumvented by reimplementing code because it does not place restrictions on the underlying ideas.
• ** Ideas should not be patentable, so patents should not place restrictions on ideas.
• ** Competition is beneficial to society. Reimplementatation of ideas in better way should be encouraged.
• Independent economic studies argue that patents are not productive (see software patents).
• * 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.
• * Public servants are generally honorable 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 not reasonable to expose small companies to the risk of being required to pay such royalties for independent software development without clear mechanism to avoiding the risk.
• 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.
• ** The number of patents filed is not a measure of inventiveness.
• ** The value to society should not be measured by inventiveness.
• The costs of software distribution are minimal compared to the cost of manufacture of physical goods. Therefore, methods of protection intended for protecting availability of physical goods are not applicable to software, because no manufacturing is necessary for software to become widely available. Thus, patents should not apply to software.
• * Software invention requires considerable investment that should be protected.
• ** Certainly, but, this investment is not adequately protected by patents, which only protects manufacturing. Patents are only relevant for R&D if you assume that manufacturing is the primary contributor for overall cost (and therefore should be primary source of revenue, so R&D would by default not be the target of investment). For software industry, this assumption is not true, since majority of revenue does not come from manufacturing.
• Granting a monopoly on an idea when this is not offset by sufficiently balanced disclosure of an associated method of manufacture of material goods will harm society, because it will prevent use of the idea without the corresponding benefit to society that would justify it.
• * Ideas are not patentable, inventions are. For a software or computer-implemented inventions to be patented, it needs to be disclosed in a manner sufficient clear and complete for the man skilled in the art to reduce it to practice.
• ** Since all software are just descriptions of ideas, it is not clear which software can be inventions and which cannot. All software can be reduced to practice trivially by running it in a computer, but it does not seem reasonable to hold all software as patentable due to this fact.
• ** Source code for software is the preferred form for making modifications to the software, so it would seem that "sufficiently clear" should mean "source code for the invention is disclosed".
• Trivial pieces of software would be subject to numerous claims of patent infringement. It would be impossible to write any software that would not infringe a patent.
• * Trivial pieces of software by definition are obvious or do not involve an inventive step and so are not patentable.
• ** However, since it's not clear where is the line between obvious and non-obvious, it's not possible to know this beforehand. Is, say, Linux kernel, obvious by this standard? Linux kernel is relatively small piece of code.
• It is impossible to determine beforehand whether a particular piece of software or particular kind of design of software infringes patents. Thus, patent-related risk cannot be eliminated by software developers by any means.
• * Patents are available through free databases. Patent search experts can help.
• ** If it seems easy, please perform this determination for the Debian Linux distribution and explain the method by which you did it.
• ** Patent search databases do not seem to help at all with this task, because even identifying the parts that are in theory patentable seems like a very difficult task.
• Software is a field of mathematics. Software is a mathematical algorithm, a fancy mathematical equation, a calculation. Mathematical algorithms, equations, and calculations are not inventions any more than a number can be an invention.
• * Some software or computer-implemented inventions are concrete and have a technical character and are not merely mathematical methods. They should be patentable. This requirement is not met by pure mathematical methods.
• ** All software is by definition a description of a mathematical method (that is, an algorithm or a way of structuring those algorithms.). If it does not try to get a monopoly on a mathematical method, then it's not a software patent.

• It is clearly not reasonable to require software developers to hire attorneys just to determine whether there is a risk of patent infringement.

  What proposals mean

  
  A confusing aspect of the debate is that it is sometimes unclear what various proposals actually mean. For example, proponents of the current European Union directive on the Patentability of Computer-Implemented Inventions say that this directive ensures that software will remain unpatentable. Indeed, the head of the United Kingdom Department of Trade and Industry, Lord Sainsbury, said it would "not change the boundaries of what is currently patentable."

In early 2005, India made a similar change to its software laws. Computer programs 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.

This may focus the debate onto the meaning of obscure legalistic clauses and away from the fundamental issues of whether software patents actually provide a net economic benefit to society.

Quotes supporting patentability

Bill Gates (Microsoft) 2005

Harald Hagedorn (SAP Patent Department) 2002

Quotes against patentability

Bill Gates (Microsoft) 1991

"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."

Oracle 1994

"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..."

Prof. Hasso Plattner when Chair of SAP Board

Pierre Haren, board director of ILOG 2001

Robert Barr (CISCO Intellectual Property Department) 2002

Douglas Brotz (Adobe) 1994

Jim Warren (Autodesk) 1994

Mitch Kapor 1994 (Founder of Lotus 123)

References