Software patents - No thanks!

This is an elaborated version of an article originally published in the Danish newspaper 'Information' on September 1. 2000.

"If the technology had been proprietary it would never have taken off. The decision to make the web an open system was necessary in order for it to become universal." One of the factors behind the development of the web was the access to free browsers and servers. If the users of Tim Berners-Lee's ideas all had had to pay royalties, the web would not have existed today. "You can't propose that something be a universal space and at the same time keep control of it." A patent would have made him rich - but the whole world would have been poorer. - Except in lawsuits.

By members of SSLUG - Skåne Sjælland Linux User Group.

A patent creates a monopoly on the usage of an invention controlled by the inventor.

A software patent creates a monopoly on the usage in software of a particular idea or a method by preventing the commercial exploitation of that idea or method by others, regardless whether or not it is a complicated technical method or just a simple idea.

For instance, the patented use of an illustration of a shopping cart to show the customer which goods the customer has selected when shopping on the Internet.

Obtaining software patents is very common in USA, but so far, quite rare in Europe. This appears to be changing. In June of this year The European Patent Office suggested the implementation of software patents in a proposed amendment to the European Patent Convention a convention joined by Denmark and 18 other European countries. The purpose of software patents (and patents in general) is to encourage technological innovation. Patents protect companies from imitation of their ideas, thus providing a greater incentive to invest in research and development.

The duration of a patent is limited to 20 years, after this time, the patent is made public, thus providing for the interests of the society by allowing anybody to commercially exploit or improve the technological innovation. 20 years is a long time on a software timescale, it is commonly estimated that one year equals one month of 'Internet time'.

We argue that patents do not in fact encourage innovation. In Denmark and the rest of Europe software has so far been protected by copyright rather than patent law. Software is exempted from patent law. The copyright holder of a programme can prohibit copying of the programme, just like an author of a literary work can prohibit others from copying that work. The holder of a software patent will have a much more extensive right to prohibit others from writing a programme that uses a patented method or idea.

Even though computer programmes are not artistic products, copyright makes good sense since programmes are made of text. The source code of a programme is a text containing computer instructions. In fact many programmers often add a (c) to their source code in order to draw attention to a copyright holder of the source code, which could be a person, an organisation or a company. The new suggestion from The European Patent Office removes the existing exception of computer programmes, thus paving the way for software patents in Europe.

If this amendment is adopted by the EPO governmental conference 2000 in November in Munich, the copyright protection will be supplemented by the much more extensive protection of a patent.

Amazon's one-click patent is an example of a software patent issued in USA. This patent is not based on a technological innovation. The Internet bookshop, Amazon, has obtained a patent on one-click ordering of a book on the Internet. In October of 1999 Amazon filed suit against its largest competitor, Barnes & Noble, for violation of their patent, and a court in Seattle ruled in favour of Amazon in a preliminary ruling. Barnes & Noble were forced to change their online shopping system making it more difficult for customers to order books. Barnes & Noble did not copy Amazon's programmes, nor Amazon's source code, they created their own programme. Amazon's one-click technique is however, a completely self-evident use of a technique based on the so-called cookies that was both known and widely used in 1997 when Amazon filed their patent.

In short, a cookie is a piece of extra information that is sent with each request between the web browser (the customer) and the web server (the bookshop). In this case the cookie is used by Amazon to identify the customer. Instead of having the customer supply the same information over and over again at each request, information such as credit card information can be stored in a cookie.

If a patented idea is self-evident - such as the Amazon patent - it is not the result of a prolonged research and development project, that has subjected the company to significant financial risk nor is it in the interests of society to protect such an idea with a patent.

Patenting of known ideas is completely unreasonable - it constitutes theft from the true originator(s). However, the existence of prior art should automatically void any patent application, and no patent should be issued before the patent office could attest the absence of any prior art. The Amazon patent constitutes a crime of theft from society as a whole because the inventors of the basic web technologies at the heart of the Amazon one-click technique have put them at the disposal of everyone free of charge.

This argument addresses patent practices in USA and not the idea of software patents in general. Patent law requires inventions to be original and non-evident - in practice the American patent authorities do not enforce this requirement. Part of the explanation is perhaps, that with 20,000 patents issued in 1999 alone, the American patent authorities do not have the necessary capacity to critically examine each application. Due to the extremely rapid technological development in the field of IT, it is doubtful that The European Patent Office will be able to do any better than its counterpart in the USA. Regardless of whether it is possible to establish a more critical practice in Europe or not, one must fear that the consequences of harmonisation with USA will be that the jungle of trivial, American software patents will flood Europe.

Sometimes the ease with which a software patent can be obtained in USA is defended with the argument that a patent can be challenged and subsequently reversed, before a possible violator can be sued for violation of a patent. In Denmark it is possible to get a patent re-evaluated by the patent authorities for a few thousand Danish Kroner (~£100) if a claim that the patent is not original can be substantiated. However, in our opinion it is not acceptable to have a legal system where companies or individuals have to file a lawsuit in order to have an incorrectly granted patent overturned.

There is always a second party that is put at a disadvantage by a patent even if the invention is real. If a patent holder receives royalties from the licensing of a patented idea, there is a company paying the corresponding expenses.
Still, patents works against small and newer software companies because they do not have the patent portfolios of larger and more established software companies. As a result they can't play the 'mutual deterrent patent game' as larger software companies can. In short, "if we can't use your patent you can't use ours." Thus software patents will have a tendency to protecting established companies from having to compete with new companies on equal footing - thereby limiting competition and keeping companies with new ideas out of the market and excluding innovating companies from the marketplace. This system may even favour the less advanced idea.

A patent holder can also prevent their competitors from using the idea at all, which weakens the innovative process in the sense that technology is not applied. Which is particularly important in the field of networking technology where the distribution of a method is a precondition for its realisation.

Tim Berners-Lee who invented the World Wide Web, the graphic click-able interface of the Internet as we know it, was asked whether or not he was sorry that he did not 'cash in' on the web. His answer was: "If the technology had been proprietary it would never have taken off. The decision to make the web an open system was necessary in order for it to become universal". One of the factors behind the development of the web was the access to free browsers and servers. If the users of Berners-Lee's ideas all had had to pay royalties, the web would not have existed today. So much for patents furthering innovation.

Without the web Amazon and others would have had no basis for their business. The release of patents after a 20-year protection period does not constitute a benefit to society. In the field of IT a 20-year old technology is usually obsolete. Even a two to three year period is a long time when it comes to innovation, and the time it takes to develop an imitation constitutes a kind of protection of innovative companies. Intellectual capital in the form of technological and commercial knowledge is a central competitive parameter in the present economy.

A company without the necessary intellectual capital to develop cutting edge technological ideas, is by definition only a runner-up in the marketplace. Copyright forces the imitators to develop their own version of the programme anyhow - a process that can be very time consuming. Keep in mind, the ordinary protection of business secrets and the rules on industrial espionage do also apply to the field of IT.

Software patent has the potential to become a big problem to the developers and users of Open Source software - for instance the operating system Linux of which our association, SSLUG, is a user group. Linux and other Open Source programmes can be freely copied and distributed. Everyone are free to make changes in the source code provided that they make the changes publicly available on the same terms, if they choose to redistribute their changes.

The Linux Operating System was mainly created by private individuals, working for free in their spare time. The name Linux is copyright of Linus Torvalds, but each programmer holds the copyright of his contribution(s) to the Linux source code. This is known as the Linux development model.

The developers of Open Source programmes have in reality no way of ensuring that the programmes do not violate a patent. Consequently anyone using the programme commercially may unknowingly violate a patent. In case a patent holder wish to enforce a patent anyone using the Open Source programme commercially would be required to pay a royalty to the patent holder. Since Open Source programmes most often also are free of charge, there is no revenue to cover such a royalty. Nor is there any money to finance a lawsuit to reverse a patent.

Today Open Source is one of the most abundant sources of IT innovation and there are several success stories to prove it. For instance the Open Source web server, Apache, is now running on more than 60% of the web servers on the Internet. It is crucial to SSLUG and the web that the European countries abstain from introducing/legalising software patents. Try to imagine that 60% of the web could become illegal over night.

Computer programmes must continue to be exempted from European patent law. The European countries should endeavour to make USA and Japan implement the present European attitude towards patents. Furthermore, the current tendency of issuing patents in spite of the existing exception of computer programs in European patent legislation should be put to an end by the European governments at the EPO Conference 2000 in Munich in November.

Enforcing the exception for patents on computer programmes will enable companies and private consumers to choose the best and cheapest software for the job - including a choice of Open Source software free of charge. The only certain consequence of following in the footsteps of USA seems to the cost of the patent system: applications, lawsuits and public funding of patent authorities...

Furthermore the lawsuits one has seen so far in the USA are possibly only minor skirmishes since most of the patent holders have so far not tried to enforce their patents. The holders of the thousands of American patents are maintaining a kind of mutual deterrent, which can turn into an Armageddon of insane, costly and paralysing lawsuits. Denmark and the rest of Europe need not run the same serious risks as the USA do by allowing software patents.

This article was written by Anne Østergaard, Carsten Svaneborg, Hanne Munkholm, Keld Jørn Simonsen og Niels Jørgensen from the Skåne Sjælland Linux User Group: SSLUG, a Swedish /Danish association with 5800 members working for the advancement of Free and Open Source Software.