Updated A Month Ago: Richard Stallman on Software Patents as Obstacles to Software Development

posted by Roy Schestowitz on Nov 29, 2023,
updated Nov 29, 2023

by Richard Stallman

Original from GNU, licensing information at the bottom

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You might have been familiar with my work on free software. This speech is not about that. This speech is about a way of misusing laws to make software development a dangerous activity. This is about what happens when patent law gets applied to the field of software.

It's not about patenting software. That's a very bad way, a misleading way to describe it, because it's not a matter of patenting individual programs. If it were, it would make no difference, it would be basically harmless. Instead, it's about patenting ideas. Every patent covers some idea. Software patents are patents that cover software ideas, ideas that you would use in developing software. That's what makes them a dangerous obstacle to all software development.

Differences between copyrights and patents

You may have heard people use a misleading term “intellectual property.” This term, as you can see, is biased, because it makes an assumption: whatever it is you are talking about, the way to treat it is as a kind of property, which is one among many alternatives. This term “intellectual property” pre-judges the most basic question in whatever area you are dealing with. That's not conducive to clear and open minded thinking.

But there is an additional problem which has nothing to do with promoting any one opinion. It gets in the way of understanding even the facts. The term “intellectual property” is a catch-all. It lumps together various completely disparate areas of law, such as copyrights and patents, which are completely different from copyrights (every detail is different), and trademarks, which are even more different, and various other things more or less commonly encountered. None of them has anything in common with any of the others. Their origins, historically, are completely separate. The laws were designed independently. They cover different areas of life and activities, and the public policy issues they raise are completely unrelated. So, if you try to think about them by lumping them together, you are guaranteed to come to foolish conclusions. Whatever they might be, there is literally no sensible or intelligent opinion you can have about “intellectual property.” So, if you want to think clearly, don't lump them together. Think about copyrights, and then think about patents. Learn about copyright law, and separately, learn about patent law.

To give you some of the biggest differences between copyrights and patents:

• Copyrights cover the details of expression of a work; copyrights don't cover any ideas. It's a {legal fault} to consider copyrights as covering any idea. But patents only cover ideas and the use of ideas.

• Copyrights happen automatically. Patents are issued by a patent office in response to an application. It costs a lot of money. And it costs even more paying the lawyers to write the application than it costs to actually apply. It takes typically some years for the application to get considered, even though patent offices typically do an extremely sloppy job of considering them.

• Copyrights last tremendously long. Nowadays, in some cases they can last as long as 150 years, whereas patents last for 20 years, which is long enough that you can outlive them, but still quite long by a timescale of a field such as software.

  Think back 20 years ago; the PC was a new thing. Imagine being constrained to develop software using only the ideas that were known in 1982.

• Copyrights cover copying. If you write a novel that turns out to be word-for-word the same as Gone with the Wind, but you can prove you never saw Gone with the Wind, and that you wrote it on your own, that would be a defense to any accusation of copyright infringement.

  But a patent is an absolute monopoly on using an idea. Even if you could prove that you had the idea on your own, it would be entirely irrelevant if the idea is patented by somebody else.

I hope you will basically just forget about copyrights for the rest of this talk, because this talk is about patents and you should never lump together copyrights and patents. Your understanding of these legal issues would be about like what would happen in your understanding of practical chemistry if you confused water and ethanol.

The patent system

When you hear people describe the patent system, they usually describe it from the point of view of somebody who is hoping to get a patent: what it would be like for you to get a patent; what it would be like for you to be walking down the street with a patent in your pocket, so that every so often you can pull it out and point it out at somebody and say “Give Me Your Money!” There is a reason for this bias, which is that most of the people who will tell you about this patent system have a stake in it, so they want you to like it.

There is another reason: the patent system is a lot like a lottery because only a tiny fraction of patents actually bring any benefit to those who hold the patents. In fact, The Economist once compared it to a time consuming lottery. If you have seen ads for lotteries, they always invite you to think about winning. They don't invite you to think about losing, even though losing is far more likely. It's the same with ads for the patent system. They always invite you to think about being the one who wins.

To balance this bias, I am going to describe the patent system from the point of view of its victims. That is from the point of view of somebody who wants to develop software but is forced to contend with a system of software patents that might result in getting sued.

So, what's the first thing you are going to do after you have had an idea of what kind of program you are going to write? The first thing you might want to try to do to deal with the patent system is find out what patents may cover the program you want to write. This is impossible. The reason is that some of the patent applications that are pending are secret. After a certain amount of time they may get published, like 18 months. But that's plenty of time for you to write a program and even release it, not knowing that there is going to be a patent and you are going to get sued. This is not just academic. In 1984, the Compress program was written (it was a program for data compression.) At the time, there was no patent on the LZW compression algorithm which it used. Then in 1985, the US issued a patent on this algorithm, and over the next few years, those who distributed the Compress program started getting threats. There was no way that the author of Compress could have realized he was likely to get sued. All he did was use an idea that he found in a journal, just like programmers have always done. He hadn't realized that you could no longer safely use ideas that you found in a journal.

But let's forget about that problem… The issued patents are published by the patent office, so you can find the whole long list of them and see exactly what they say. Of course, you couldn't actually read that whole list as there are too many of them. In the US, there are hundreds of thousands of software patents, and there is no way you could keep track of what they are all about. So you'd have to try to search for relevant ones. Some people say that should be easy in these modern days of computers. You could search for keywords and so on. Well, that will work to a certain extent. You will find some patents in the area. You won't necessarily find them all, however.

For instance, there was a software patent which, I think, may have expired by now, on natural order recalculation in spreadsheets. This means basically that, when you make certain cells depend on other cells, it always recalculates everything after the things it depends on, so that after one recalculation everything is up to date. The first spreadsheets did their recalculation top-down, so if you made a cell depend on a cell that was lower down, and you had a few such steps, you had to recalculate several times to get the new values to propagate upwards. You were supposed to have things depend on cells above them, you see. Then somebody realized, “Why don't I just do the recalculation. Everything gets recalculated after the things it depends on. Do it in the right order, and they will all be up to date.” This algorithm is known as topological sorting. The first reference to it I could find was in 1963. The patent covered several dozen different ways you could implement topological sorting, but you wouldn't have found this patent by searching for “spreadsheet,” because it didn't mention that word. You couldn't have found it to “natural order” or “topological sort,” because it didn't have any of those terms in it. In fact, it was described as a “method of compiling formulas into object code.” I think when I first saw it, I thought it was the wrong patent.

But let's suppose that you got a list of patents. So you want to see now what you are not allowed to do. You try studying these patents; well, you discover it's very hard to understand them, because they are written in tortuous legal language, whose meaning is very hard to understand. In fact, things that patent offices say often don't mean what they seem to mean.

There was an Australian government study of the patent system in the 1980's. It concluded that, aside from international pressure, there was no reason to have a patent system—it did no good for the public—and recommended abolishing it, if not for international pressure. One of the things they cited was that engineers don't try reading patents to learn anything, because it is too hard to understand them. They quoted one engineer saying “I can't recognize my own inventions in patenteese.” [laughs]

This is not just theoretical. Around 1990, a programmer named Paul Heckel sued Apple, claiming that Hypercard infringed a couple of his patents. When he first saw Hypercard, he didn't think it had anything to do with his “inventions.” It didn't look similar. But his lawyer told him that you could read the patents as covering part of Hypercard, so he decided to then attack Apple. When I gave a speech about this at Stanford, he was in the audience and he said “That's not true, I just didn't understand the extent of my protection!” [laughs]  And I said, “Yes, that's what I said!” [laughs]

So, in fact, you are going to spend a lot of time talking with lawyers to figure out what these patents prohibit you from doing. And ultimately, they are going to say something like this: “If you do something in here, you are sure to lose; if you do something in here, there is a substantial chance of losing, and if you really want to be safe, stay out of this area. And, by the way, there is a sizable element of chance in the outcome of any lawsuit.” [chuckle in the audience]

How a developer can deal with patents

Now that you have a predictable terrain for doing business, [chuckle in the audience] what are you going to do? Well, there are three approaches that you might try, any of which is applicable in some cases.

They are:

1. avoiding the patent,
2. licensing the patent, or
3. overturning it in court.

Let me describe these three approaches and what makes them workable or unworkable.

1. Avoiding the patent

That means don't use the idea that the patent covers. This can be easy or hard, depending on what that idea is. In some cases, a feature is patented. Then you avoid the patent by not implementing that feature. Then it just matters how important is that feature. In some cases, you can live without it.

A while ago, the users of the word processor XyWrite got a downgrade in the mail. The downgrade removed a feature which allowed you to predefine abbreviations: when you typed an abbreviation followed by a punctuation character, it would immediately replace itself by some expansion. So that way you could define the abbreviation for some long phrase, type the abbreviation, and then the long phrase would be in your document. They wrote to me about this because they knew that the Emacs editor has a similar feature. In fact, it had it since the 70's. This was interesting because it showed me that I've had at least one patentable idea in my life. [laughs]  I knew it was patentable because somebody else patented it afterward! Actually, they had tried these various approaches. At first they tried negotiating with the patent holder, who turned out not to negotiate in good faith. Then they looked at whether they could have a chance of overturning the patent. What they decided to do was take out the feature. You can live without this feature. If the word processor lacks only this feature, maybe people will still use it. But as various features start getting hit, eventually you end up with a program that people think is not very good, and they are likely to reject it.

That's a rather narrow patent on a very specific feature. But what do you do with the British Telecom patent on traversing hyperlinks together with dial-up access? Traversing hyperlinks is absolutely essential to a major use of computers these days. And dial-up access is also essential. How do you do without this feature, which, by the way, isn't even one feature, it is really just a combination of two, just arbitrarily juxtaposed. It is rather like a patent on having a sofa and television in the same room. [laughs]

Sometimes the idea that's patented will be so broad and basic that it's very hard, that it basically rules out an entire field. For instance, the idea of Public Key Encryption, which was patented in the US. The patent expired in 1997. Until then, it largely blocked the use of Public Key Encryption in the US. A number of programs that people started to develop got crushed, and were never really available because the patent holders threatened them. Then, one program got away: the program PGP, which initially was released as free software. Apparently, the patent holders, by the time they got around to attacking, realized they might get too much bad publicity. So they imposed restrictions, making it for noncommercial use only, which meant it couldn't catch on too much. So they greatly limited the use of Public Key Encryption for a decade or more. There was no way around that patent. There was nothing else you could do like that.

Sometimes a specific algorithm gets patented. For instance, there is a patent on an optimized version of the Fast Fourier Transform. It runs about twice as fast. You can avoid that by using the ordinary FFT in your program. That part of your program will take twice as long. Maybe that doesn't matter. Maybe that's a small enough part of the program's running time that, if it is twice as slow, you won't really notice. Or maybe that means your program won't run at all, because it will take twice the real time to do its job. The effects vary.

In some cases, you can find a better algorithm. That may or may not do you any good. Because we couldn't use Compress, in the GNU Project we started looking for some other algorithm for data compression. Somebody wrote to us saying he had one. He had written a program and he decided to contribute it to us. We were going to release it, and just by chance I happened to see a copy of the New York Times that happened to have the weekly patent column in it. I didn't see a copy of the Times more than once every few months. So I looked at it, and it said that somebody had got a patent for “inventing a new method of compressing data.” I figured I better take a look at this patent. I got a copy, and it turned out to cover the program that we were just a week away from releasing. So that program died before it was born. Later on we did find another algorithm which was unpatented. That became the program Gzip, which is now effectively the de-facto standard for data compression. As an algorithm to use in a program for data compression, it was fine. People who wanted to do data compression could use Gzip instead of Compress. But the same patented LZW compression algorithm was also used in image formats such as GIF format. And there, because the job that people wanted to do was not simply “Compress my data,” but “Make an image that people can display with their software,” it turned out to be very hard to switch over to a different algorithm. In fact, we have not been able to do it in 10 years! Yes, people used the new Gzip algorithm to define another image format, once people started getting threatened with lawsuits for using GIF files. But when we started saying to people “Hey, stop using GIF files, switch over to this!” people said, “We can't switch. The browsers don't support the new format yet.” And the browser developers said “We're not in a hurry about this. After all, nobody is using this file format.” [laughs]

In effect, society had so much inertia in the use of that particular format [GIF] that we have not been able to get people to switch. Essentially, the community's use of the GIF format is still pushing sites into using GIF format, with the result that they are vulnerable to these threats.

In fact, the situation is even more bizarre, because there are actually two patents covering the LZW compression algorithm. The patent office couldn't even tell that they were issuing two patents on the same thing. They couldn't keep track. There is a reason for this. It takes a while of study of these two patents to see that they really cover the same thing.

If they were patents on some chemical process, it would be much easier. Because you could see what substances were being used, what the inputs were, what the outputs were, which physical actions are being taken. No matter how they are described, you'd see what they were and then you would see that they are similar.

But when something is purely mathematical, you could have various ways to describe it, which are a lot more different. They are not superficially similar. You have to really understand them to see they are talking about the same thing. In the patent office, they don't have time. The US Patent Office, as of a few years ago, was spending 17 hours on the average per patent. This is not long enough to think carefully about them. So, of course they make mistakes like that. In fact, I told you about the program that died before it was born. Well, that algorithm also has had two patents issued for it in the US. Apparently, it is not that unusual.

So, avoiding the patents may be easy {or it} may be impossible; it may be easy but it makes your program useless. It varies depending on the situation.

Here is another point I should mention, that sometimes a company or consortium can make a format or protocol a de-facto standard. Then, if that format or protocol is patented, that's a real disaster for you. There are even official standards that are restricted by patents. There was a big political uproar last September when the World Wide Web Consortium was proposing to start adopting standards that were covered by patents. The community objected, and they reversed themselves. They went back to insisting that patents had to be freely implementable by anyone, and that standards had to be free for anyone to implement. That is an interesting victory. I think it's the first time any standards body has made that decision. It's normal for standards bodies to be willing to put something in a standard which in fact is restricted by patents, and people are not allowed to go ahead and implement it freely. We need to go to other standards bodies and call on them to change their rules.

2. Licensing the patent

The second possibility is, instead of avoiding the patent, to get a license for the patent. This is not necessarily an option. The patent holder does not have to offer you a license. It's not required. Ten years ago, the League for Programming Freedom got a letter asking for help from somebody whose family business was making gambling machinery for casinos, and they used computers back then. He received a threat from another company that said, “We have the patents. You are not allowed to make these things. Shut down.”

I looked at that patent. It covered having a number of computers on a network for playing games, such that each computer supported more than one game and allowed you to be playing more than one game at a time.

You will find the patent offices really think that there is something brilliant about doing more than one of anything. [laughs]  They don't realize that, in computer science, that's the most obvious way to generalize anything. You did it once. Now you can do it any number of times, make a subroutine. They think that if you do anything twice instead of once, you made a new invention. That somehow means you are brilliant and nobody can possibly argue with your right to boss them around and restrict them. Anyway, he wasn't offered a license, and he had to shut down. He couldn't even afford really to go to court. I would say that particular patent was an obvious idea. It's possible that a judge might have agreed. We will never know, though, because he could not afford to go to court.

However, a lot of patent holders do offer licenses. They often charge a lot of money for that, though. The company licensing the natural order recalculation patent was demanding 5% of the gross sales of every spreadsheet in the US. I am told that was the cheap pre-lawsuit price. If you actually made them sue you and they won, they'd demand more. You might be able to afford that 5% for licensing this one patent, but what if you need to license 20 different patents to make the program? Then all the money you take in has to go out to them. What if you need to license 21 patents?

People in business told me that, practically speaking, two or three of them would make any business unfeasible.

But there is a situation where licensing patents is a very good solution. That is if you are a multinational mega-corporation. Because these companies own a lot of patents, and they cross-license with each other. That way, they escape most of the harm that the patent system does and they only get the good. IBM published an article in Think magazine—I believe it was issue No. 5 of 1990—on IBM's patent portfolio, which said that IBM got two kinds of benefits from its 9000 US patents. I believe the number is larger today. These were (1) collecting royalties, and (2) getting access to the patents of others. They said that the latter benefit was an order of magnitude greater. So, the benefit that IBM got from being allowed to use the ideas that were patented by others was 10 times the direct benefit IBM could get from licensing patents.

What does this really mean? What is the benefit that IBM gets from this access to the patents of others? It's basically the benefit of being excused from the trouble that the patent system can cause you. The patent system is like a lottery. What happens with any given patent could be nothing, could be a windfall for some patent holder and a disaster for everyone else. But IBM being so big, for them it averages out. They get to measure the average harm and good of the patent system. For them, the trouble would have been 10 times the good. I say would have been because IBM, through cross-licensing, avoids experiencing that trouble. That trouble is only potential. It doesn't really happen to them. But when they measure the benefits of avoiding that trouble, they estimate it as 10 times the value of the money they collect from their patents.

This phenomenon of cross-licensing refutes a common myth, the myth of the starving genius. The myth that patents “protect” the “small inventor.” Those terms are propaganda terms. You shouldn't use them. The scenario is like this: Suppose there is a brilliant designer of whatever, who has spent years by himself, starving in an attic, designing a new wonderful kind of whatever, and now wants to manufacture it. Isn't it a shame the big companies are going to go into competition with him, take away all the business and he'll “starve”? Well, I have to point out that people in high tech fields are not generally working on their own, and that ideas don't come in a vacuum—they are based on the work of others—and that these people have pretty good chances of getting a job if they need to these days. So this scenario, the idea that this brilliant idea came from this one person working alone, is unrealistic, and the idea that he is in danger of starving is unrealistic. But it is conceivable that somebody could have an idea, and this idea, maybe together with 100 or 200 other ideas, could be the basis of making some kind of product, and that big companies might want to compete with him. So let's see what happens if he tries to use a patent to stop them. He says, “Oh no, IBM. You can't compete with me. I've got this patent.” And IBM says, “Let's see. Let's look at your product. Hmmm. I've got this patent and this one and this one and this one and this one and this one, which parts of your product infringe. If you think you can fight against all of them in court, I'll just go back and look for some more. So, why don't you cross-license with me?” And then this brilliant small [laughs] inventor says, “Well, OK, I'll cross-license.” And now he can go back and make these wonderful whatever it is, and so can IBM. IBM now gets access to his patent, and gets the right to compete with him, which means that this patent didn't “protect” him at all. The patent system doesn't really do that.

The mega-corporations avoid, for the most part, the harm of the patent system. They see mainly the good side. That's why they want to have software patents. They are the ones who will benefit from it. But if you are really a small inventor, or work for a small company, the small company is not going to be able to do this. They try. The problem is that they cannot get enough patents to do this. You see, any given patent is pointing in a certain direction. So, if a small company has patents pointing there, there, and there [showing left side], and somebody over there [showing right side] points a patent at them and says “Give me your money,” they are helpless, because they've got patents pointing there or near [showing left side], but not there [showing right side]. IBM can do it, because with these 9000 patents, they are pointing everywhere. No matter where you are, there is an IBM patent pointing at you, probably. So, IBM can always make you cross-license, almost always. But the small companies only occasionally can make someone cross-license. They will say they want patents for defensive purposes, but they won't get enough to be able to defend themselves.

There are cases where even IBM cannot make someone cross-license. That is when there is a company whose sole business is taking a patent and squeezing money out of people. The company that had the natural order recalculation patent was exactly such a company. Their sole business was to threaten to sue people and collect money from people who were really developing something.

There are no patents on legal procedures. [laughs]  I guess the lawyers sort of understand what a pain it would be to have to deal with the patent system themselves. The result is that there is no way you can get a patent to make that company, Refac, cross-license with you. So they go around squeezing everyone. But I guess the companies like IBM figure that's part of the price of doing business so they can live with it.

So that's the possibility of licensing a patent, which may or may not be possible. And you may or may not be able to afford it.

3. Overturning the patent in court

Supposedly, in order to be patented, something has to be new, useful and unobvious. That's the language used in the US. I think other countries have different language which is pretty much equivalent to it. Of course, when the patent office gets into the game and they start interpreting new and unobvious, “new” turns out to mean “we don't have it in our files,” and “unobvious” tends to mean “unobvious to somebody with an IQ of 50.”

Somebody who studies most of the software patents issued in the US—or at least he used to; I don't know if he can still keep up with them—said that 90% of them wouldn't pass the Crystal City test, which meant, if the people in the patent office went outside to the news stand and got some computer magazines, they would see that these ideas were already known.

The patent office does things that are so obviously foolish, you wouldn't even have to know the state of the art to see they are foolish. This is not limited to software. I once saw the famous Harvard mouse patent, which was obtained after Harvard genetically engineered a strain of mouse with a cancer causing gene. The cancer causing gene was already known, and was inserted using known techniques into an already existing strain of mouse. The patent they got covered inserting any cancer causing gene into any kind of mammal, using any method whatsoever. You don't have to know anything about genetic engineering to realize that is ridiculous.

But I am told that this overclaiming is normal practice, and that the US Patent Office sometimes invited patent applicants to make their claims broader. Basically, make the claims broader until you think they are running into something else that's unambiguous prior art. See how much land grab in mental space you can get away with.

When programmers look at a lot of software patents, they say, “This is ridiculously obvious!” Patent bureaucrats have all sorts of excuses to justify ignoring what programmers think. They say “Oh! But you have to consider it in terms of the way things were 10 or 20 years ago.” Then they discovered that if they talk something to death then you can eventually lose your bearings. Anything can look unobvious if you tear it apart enough, analyze it enough. You simply lose all standard of obviousness, or at least lose the ability to justify any standard of obvious or unobvious. Then, of course, they describe the patent holders as brilliant inventors, all of them. Therefore we can't question their entitlement to power over what we can do.

If you go to court, the judges are likely to be a little more stringent about the idea of what is obvious or not. But the problem is it costs millions of dollars to do that. I heard of one patent case, the defendant I remember was Qualcomm, and I believe the ruling ultimately was 13 million dollars, of which most went to pay the lawyers on both sides. There were a few million dollars left over for the plaintiff, because they lost.

To a large extent, the question of the validity of a patent will depend on historical accidents. Lots of historical accidents, such as precisely what was published when, and which of those things somebody manages to find, which of them didn't get lost, the precise dates, and so on. So it's many historical accidents that determine whether the patent is valid.

In fact, it is a weird thing the British Telecom following hyperlinks together with phone access patent, was applied for, I think, in 1975. I think it was in 1974 that I developed the Info package for the first time. The Info package allows you to traverse hyperlinks, and people did use telephones to dial up and access the system. So in fact, I produced a piece of prior art for that patent. That's the second patentable idea I've had in my life, but I don't think I have any proof of that. I didn't think this was interesting enough to publish it. After all, the idea of following hyperlinks, I got that from a demo of Engelbart's editor. He is the one who had an idea that was interesting to publish. I called it “poor man's hypertext,” because I had to implement it in the context of TECO. It wasn't as powerful as his hypertext, but it was at least useful for browsing documentation, which was all it was meant for, and as for there being dial-up access to the system, well, there was, but it didn't occur to me that the one had any particular thing to do with the other. I wasn't going to try to publish a paper saying “Oh! I implemented this poor man's hypertext, and guess what! There are dial-up lines on the computer too!” [laughs]  I suspect there is no way to tell precisely on what dates I implemented this. And was it published in any sense? Well, we invited guests to come in across the ARPAnet and log in on our machine, so they could have browsed documentation using Info, and seen the thing. And if they had asked us, they would have found we have dial-up access. But as you can see, historical accident determines whether you've got prior art.

Now of course, there is a publication made by Engelbart about hypertext, which they are going to show. I don't think it says anything about having dial-ups on the computer however. So, whether it will suffice is not clear.

So, this is an option, the possibility of going to court to overturn the patent. But, because of the expense, it is often out of the question even if you can find solid prior art that ought to be sufficient to overturn the patent. As a result, an invalid patent, a patent that nominally shouldn't have existed (but in fact lots and lots of them do) is a dangerous weapon. If somebody attacks you with an invalid patent, that can really cause a lot of trouble for you. You might be able to bluff them away by showing them the prior art. It depends whether they can get scared off that way or they might think “Well, you are just bluffing, we figure you can't really go to court. You can't afford it, so we'll sue you anyway.”

All of these three possibilities are things that sometimes you can manage to use, but often you can't. So you have to face patent after patent after patent. Each time you may be able to find one of these three possibilities you can use, then there is another patent, then another, and another. It gets like crossing a minefield. Each step you take, each design decision, probably won't step on a patent. So you can take a few steps and, probably, there won't be an explosion. But the chance that you will get all the way through the minefield and get to develop the program you wanted to develop without ever stepping on a patent gets less and less as the program gets bigger.

Specificities of the software field

Now, people used to say to me, “Well, there are patents in other fields, why should software be exempt?” Note the bizarre assumption in there that somehow we are all supposed to suffer through the patent system. It is like saying “Some people get cancer. Why should you be exempt?” [laughs]  As I see it, each person who doesn't get cancer is good. But there is, behind that, a less biased question, which is a good question, which is: Is software different from other fields? Should patent policy be different in different fields? And if so, why?

Let me address that question: patents relate to different fields differently because in various fields patents relate to products differently.

On the one extreme we have pharmaceuticals, where a given chemical formula would be patented, so that patent covers one and only one product. Some other product wouldn't be covered by the existing patent. If there is to be a patent for this new product, the patent holder would be whoever developed the new product.

That fits in with the naive idea of the patent system that we have, that, if you are designing a new product, you are going to get “The Patent,” the idea that there is one patent per product and that it covers the idea of that product. In some fields that's closer to being true. In other fields it's farther from being true. Software is at the opposite extreme. This is because software packages are very big, usually, and they use many different ideas in a new combination. If the program is new, it's not just copied, then it's probably using a different combination of ideas combined, of course, with newly written code, because you can't just magically say the names of these ideas and have them work. You have to implement them all. You have to implement them all in that combination. The result is that, when you write a program, you are using lots of different ideas, any one of them might be patented by somebody. A pair of them might be patented as a combination by somebody. There might be several different ways of describing one idea, which might be patented by various different people. So there are possibly thousands of things, thousands of points of vulnerability in your program, which might be patented by somebody else already. This is why software patents tend to obstruct the progress of software—the work of software development.

If it were one patent-one product, then these patents wouldn't obstruct the development of products, because if you developed a new product it wouldn't be patented by somebody else already. But when one product corresponds to many different ideas combined, it becomes very likely that your new product is going to be patented by somebody else already. In fact, there is economic research now showing just how imposing a patent system on a field where there is incremental innovation can retard progress. You see, the advocates of software patents say “Well yes, there may be problems, but more important than any problems, the patents must promote innovation, and that is so important it doesn't matter what problems they cause.” Of course, they don't say that out loud because it is ridiculous, but implicitly they want you to believe that, as long as it promotes progress, that outweighs any possible cost. But actually, there is no reason to believe it does promote progress. We now have a model showing precisely how patents can retard progress. The case where that model can fit describes the software field pretty well: incremental innovation.

Why is software on that extreme of the spectrum? The reason is that in software we are developing idealized mathematical objects. You can build a complicated castle and have it rest on a thin line, and it will stay up because it doesn't weigh anything. In other fields, people have to cope with the perversity of matter—of physical objects. Matter does what it is going to do. You can try to model it, and if the actual behavior doesn't fit the model, tough on you. Because the challenge is to make physical objects that really work.

If I wanted to put an if statement inside a while statement, I don't have to worry about whether the if statement will oscillate at a certain frequency and rub against the while statement and eventually they will fracture. [laughs]  I don't have to worry whether it will oscillate at a certain higher frequency and induce a signal in the value of some other variable. I don't have to worry about how much current that if statement will draw, whether it can dissipate the heat there inside that while statement. Whether there will be a voltage drop across the while statement that will make the if statement not function. I don't have to worry that if I run this program in a salt-water environment, that the salt water might get in between the if statement and the while statement and cause corrosion. I don't have to worry, when I refer to the value of a variable, whether I am exceeding the fan-out limit by referring to it too many times. I don't have to worry, when I refer to the variable, how much capacitance it has and whether there has been sufficient time to charge up the value. I don't have to worry, when I write the program, about how I'm going to physically assemble each copy, and whether I can manage to get access to put that if statement inside the while statement. And I don't have to worry about how I'm going to gain access in case the if statement breaks, to remove it and replace it with a new one. [laughs]

So many problems that we don't have to worry about in software. That makes it fundamentally easier. It's fundamentally easier to write a program than to design a physical object that's going to work. This might seem strange because you have probably heard people talking about how hard software is to design, and how this is a big problem and how we are going to solve it. They are not really talking about the same question I am. See, I'm comparing physical and software systems of the same complexity, the same number of parts. I'm saying the software system is much easier to design than the physical system. But the intelligence of people in these various fields is the same, so what do we do when we are confronted with an easy field? We just push it farther! We push our abilities to the limit. If systems of the same size are easy, let's make systems which are ten times as big, then it will be hard! [laughs]  That's what we do! We make software systems far bigger in terms of number of parts than physical systems. A physical system whose design has a million different pieces in it is a mega project. A computer program whose design has a million pieces in it, that's maybe 300,000 lines, a few people will write that in a couple of years. That's not particularly a giant program. GNU Emacs now has several million pieces in its design I think, because it has a million lines of code. This was a project done with essentially no funding whatsoever. Mostly done by people in their spare time.

There is another big saving. If you designed a physical product, the next thing you have to do is design the factory to make it. To build this factory may cost millions or tens of millions, whereas to make copies of the program, you just have to type copy. The same copy command will copy any program. You want copies on CD, fine. You burn a master CD and send it off to a CD plant. They will use the same equipment that will copy any contents on a CD. You don't have to build a factory to make this product. There is tremendous simplification and tremendous reduction in costs of designing things. The result is, say for an automobile company, if they are going to spend 50 million dollars to build a factory, to build a new model of auto, they can hire some lawyers to cope with some patent license negotiations. They could even cope with a lawsuit if they wanted to. Designing a program of the same complexity might cost 50 thousand dollars, or 100 thousand dollars. By comparison, the cost of dealing with the patent system is crushing. Actually designing a program with the same complexity as the mechanical design of an auto, that's probably a month work. How many parts does an auto have… that is if it is an auto that doesn't have computers in it?[1] There are not that many parts, you see. Which is not to say designing a good one is easy, but just that there are not that many different things in it.

The result is, software really is different from other fields because we are working with mathematical stuff. Designing something is far, far easier. And the result is we regularly make systems that are much, much larger, and do so with just a few people. The result is that the patent system then, instead of being close to “one product, one patent,” we are in a system where one product involves many, many ideas that could be patented already.

The best way to explain it by analogy is with symphonies. A symphony is also long and has many notes in it, and probably uses many musical ideas. Imagine if the governments of Europe in the 1700's had decided they wanted to promote the progress of symphonic music by establishing a European Musical Patent Office that would give patents for any kind of musical idea that you could state in words. Then imagine it is around 1800 and you are Beethoven and you want to write a symphony. You are going to find that getting your symphony to be legal, so that it doesn't infringe any patents, is going to be harder than writing a good symphony. When you complain about this, the patent holders would say “Ah Beethoven, you are just bitching because you have no ideas of your own. All you want to do is rip off our inventions.” Beethoven, as it happens, had a lot of new musical ideas, but he had to use a lot of existing musical ideas in order to make recognizable music, in order to make music that listeners could possibly like, that they could recognize as music. Nobody is so brilliant that he can re-invent music and make something that people want to listen to. Pierre Boulez said he would try to do that, and… who listens to Pierre Boulez? [laughs]

Nobody is so brilliant he can re-invent all computer science, completely new. If he did, he'd make something that the users would find so strange that they wouldn't want to use it. If you look at a word processor today, you'll find, I think, hundreds of different features. If you develop a nice new innovative word processor, that means there are some new ideas in it, but there must be hundreds of old ideas in it. If you are not allowed to use them, you cannot make an innovative word processor.

Because the work of software development is so big, the result is that we don't need any artificial scheme to incentivize new ideas. You just have people writing software and they will have some new ideas. If you want to write a program, you want to make it good. Some ideas will come to you, and some of them you will see a way to use. What used to happen—because I was in the software field before there were software patents—was most of the developers would publish any new ideas that they thought were noteworthy, that they thought they might get any credit or respect for. The ideas that were too small or not impressive enough, they would not publish because that would be silly. Now the patent system is supposed to encourage disclosure of ideas. In fact, in the old days, nobody kept the ideas secret. They kept the code secret, it's true. The code, after all, represented the bulk of the work. They would typically keep the code secret and publish the ideas. That way, the employees could get some credit and feel good; you know, they were allowed to publish papers. After software patents, they still kept the code secret and they patented the ideas. So, in fact, disclosure has not been encouraged in any meaningful sense. The same things are kept secret now as were kept secret before, but the ideas, which used to be published so we could use them, now are likely to be patented and off-limits for 20 years.

Addressing the problem of software patents in public policies

What can a country do to change this? How should we change the policy to solve this problem? There are two places you can attack it. One is the place where patents are being applied for and issued, in the patent office. And the other is when patents are being applied—that is, the question of what does a patent cover.

Changing the criteria for issuing patents, or simply keeping a good criteria for issuing patents, can work in a country which has not authorized software patents before; for instance, for the most part, in Europe. Simply to clearly re-enforce the European Patent Office's rules which say that software is not patentable. This is a good solution for Europe. Europe is now considering a directive on software patents. The directive I suppose may be broader than that but one of its important implications is for software patents. Simply by modifying this to say software ideas cannot be patented will keep the problem out of Europe for the most part, except for some countries that may have admitted the problem on their own—unfortunately, one of them being the UK, unfortunately for you.

That approach won't work in the US. The reason is that the US already has large numbers of software patents, and any change in the criteria for issuing patents won't get rid of the existing ones. However in fact, these patents are not officially labeled as software patents. I say software patents, but what do I really mean? I mean patents that might potentially apply to software, that might potentially get you sued for writing software. The patent office doesn't divide patents into software patents and other patents. So, in fact, any patent might conceivably get you sued for writing software if it could apply to some software. So, in the US, a solution would have to be done through changing the applicability, the scope of patents, saying that a pure software implementation, running on general purpose computer hardware which does not in itself infringe the patent, is not covered by any patent and you can't be sued for it. That's the other kind of solution.

But the first kind of solution, the solution that operates on what kinds of patents can be valid is a good solution for Europe to use.

When the US started having software patents, there was no political debate. In fact, nobody noticed. The software field, for the most part, didn't even notice. There was a Supreme Court decision in 1981 which considered a patent on a process for curing rubber. The ruling was that the fact that the apparatus included a computer and a program as part of the process to cure the rubber did not make it unpatentable. The appeals court the next year, which considers all patent cases, reversed the qualifiers. They said the fact that there is a computer and a program in this makes it patentable. The fact that there is a computer and program in anything makes it patentable. This is why the US started having business procedure patents. Because the business procedures were carried out on a computer and that made them patentable. So this ruling was made, and I think the natural order recalculation patent was one of the first or might have been even the first.

But throughout the 80's we mostly didn't know about this. It was around 1990 that programmers in the US started to become aware that they were faced with a danger from software patents. So, I saw how the field worked before then and how it worked after. I saw no particular speed up in progress after 1990. There was no political debate in the US, but in Europe there has been a big political debate. Several years ago there was a push to amend the Munich treaty that established the European Patent Office. It has a clause saying that software is not patentable. The push was to amend that to start allowing software patents. But the community took notice of this. It was actually free software developers and free software users who took the lead.

We are not the only ones threatened by software patents. All software developers are threatened by software patents and even software users are threatened. For instance, Paul Heckel, when Apple wasn't very scared of his threats, he threatened to start suing Apple customers. That, Apple found very scary. They figured they couldn't afford to have their customers being sued like that, even if they would ultimately win. So users can get sued too, either as a way of attacking a developer, or just as a way to squeeze money out of them on their own or cause mayhem to them on their own.

All software developers and users are vulnerable, but it was the free software community in Europe that took the lead in organizing opposition. In fact, twice now the countries that govern the European Patent Office voted not to amend that treaty. Then the EU took a hand, and the directorates of the EU were divided on the issue.

The one whose job is to promote software is against software patents, it seems. But they were not in charge of this issue. It's the open market directorate that is in charge, and that's led by somebody who is in favor of software patents. They basically disregarded public opinion that had been expressed to them, and they proposed a directive to allow software patents.[2] The French government has already said they are against it. People are working in various other governments in Europe to oppose software patents, and it is vital to start doing so here.

According to Hartmut Pilch, who is one of the leaders in the European struggle against software patents, the main impetus comes from the UK Patent Office. The UK Patent Office is simply biased in favor of software patents. It had a public consultation, and most of the responses were opposed to software patents. They then wrote a report saying that people seem to be content with them, [laughs] completely disregarding the answers. You see, the free software community said, “Please send the answers to them, and please send your answers to us too and we'll publish them.” So they published these answers, which were opposed generally. You'd have never guessed that from the report that the UK Patent Office published.

They [the UK Patent and Trademark Office] use a term that they call “technical effect.” This is a term which can stretch tremendously. You are supposed to think it means a program idea would only be patentable if it relates closely to specific physical activities. If that is the interpretation, it would mostly solve the problem. If the only software ideas that could be patented were those that really did relate to a particular technical, specific physical result that you might have patented if you didn't use a program, that would be OK. The problem is you can stretch that term. You can describe the result you get by running any program as a physical result. How does this physical result differ from every other? Well it is as a result of this computation. The result is that the UK Patent Office is proposing something that looks like it leads to mostly solving the problem, and really gives carte blanche for patenting almost anything.

The people in the same ministry are also involved in a copyright issue which really has nothing to do with software patents except that it's being handled by the same people. It's a question of interpreting the recent EU copyright directive, a horrible law like the Digital Millennium Copyright Act in the US. But there is some latitude for countries to decide how to implement it. The UK is proposing the most draconian possible way of implementing this directive. You could greatly reduce the harm that it does by implementing it properly. The UK wants to maximize the tyrannical effect of this directive. It seems there is a certain group, the Department of Trade and Industry [archived], [laughs] who need to be reined in. [laughs]  It is necessary to put a check on their activities. Stop their creating new forms of power.

Software patents tie up every software developer and every computer user in a new form of bureaucracy. If the businesses that use computers realized how much trouble this can cause for them, they would be up in arms, and I'm sure they could stop it. Business doesn't like being tied up in bureaucracy.

Sometimes, of course, it serves an important purpose. There are some areas where we wish the UK government did a more careful job of tying certain businesses up in bureaucracy, like when it involves moving animals around.[3] But in some cases, when it doesn't serve any purpose except to create artificial monopolies, so that somebody can interfere with software development, squeeze money out of developers and users, then we should reject it.

We need to make management aware of what software patents will do to them. Get their support in fighting against software patents in Europe.

The battle is not over. It still can be won. [applause]

Footnotes

1. There are approximately 300-400 unique parts in an automatic transmission, and a transmission is generally the most complicated component of an auto. To design a transmission may take six months to a year, and even then it may take longer to actually get it built and functioning. However, a program with 500 to 600 functional parts would have 200 to 300 lines of actual code, and would probably take a good programmer a day to a week to write, test and debug.
2. On 6 July 2005, the European Parliament rejected the software patent directive by 648 out of 680 votes. However, we must not forget the issue of software patents, as those who were pressing for patenting are trying to revive the recently thrown-out directive. We also have to ensure that the European Patent Office (EPO) and the national offices in different EU countries stop conceding patents for software included in other kinds of inventions.
3. To make it harder for foot-and-mouth disease to spread.

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