Note: This essay was first published on Groklaw on Monday, October 11, 2004. It sparked a lively discussion of approximately 480 replies. A week later, Groklaw’s editor, PJ, published a reply by Richard Stallman, in which he stated, “The supposition that software idea patents are inevitable is a form of defeatism that is already visibly mistaken.”
Groklaw and other FOSS (Free Open-Source Software) sites have recently advocated essentially abandoning patent protection for software, either by getting rid of software patents altogether, or by exempting FOSS from patent enforcement. This seems like a case of throwing the baby out with the bath water.
Software patents are being abused, but patents are important and useful, and with sensible reform to patent laws, patents could encourage innovation, which is the fundamental purpose of patent law.
The problem with current patent laws are many, but to list a few:
- Patents are granted frivolously.
- Litigation is heavily weighted in favor of large corporations; in fact, individuals and small companies simply can’t litigate.
- It is almost impossible for an innovator to know if there is a patent already covering his/her innovation.
- Patents can be used to block use of an innovation rather than encourage its use.
- Holders of “submarine” patents can deliberately lurk, predator-like, waiting for honest, unsuspecting innovators to invest huge amounts of time in already-patented technology.
Straightforward and fair changes to patent law would completely change the landscape of patent litigation and innovation.
- Require publication and public review of all software patent applications prior to issuance, regarding the key elements of a patent: Prior art, innovation, “non-obvious” technology, and that it’s an actual invention.
- Change the law so that individuals and small businesses can investigate and rectify actual infringements with modest legal fees, and so that wealthy corporations can’t force a settlement simply because their victims can’t afford to litigate.
- Shift the burden of discovery of patent infringement to the patent holder. A patent holder must actively monitor products and technology, or forfeit his/her patent rights.
- Prohibit damages in arrears. If a patent holder discovers infringement, royalties could only be collected once the infringer has been notified and given reasonable opportunity to remove the infringing code, or enter into a royalty agreement with the patent holder. The exception would be when it can be shown that the infringer must have known or did know about the patent.
- Require that a patent holder use the technology or lose the patent. A patent could not be simply held indefinitely. This would put an end to both “submarine” patents, and to “patent holding companies”, both of which stifle innovation and impede commerce. It would also end the practice of obtaining a patent to block technology — patents could only be used to develop and create products. Patents could not be used as a speculation commodity, and innovators would be free of unknown and unknowable legal traps.
- Shorten the life of a software patent compared to traditional patents, to reflect the nature of the business itself. Seventeen years may have been appropriate for the color TV tube, but it’s an absurdly long time for a software innovation.
Some of these would be tricky, and surely require more careful definitions. For example, what constitutes “use it or lose it”? Guidelines would help, for example three years might be a “grace period” where the presumption of a valid patent is with the patent holder, but after three years with no product on the market, the burden of proof of ongoing activity would shift to the patent holder.
Patents have historically served an important need. Huge investments in research are often required, whether in semiconductors (the transistor), electronics (the color-TV tube) the drug industry, and many, many other industries. Including software — I myself received a software patent for an invention that required months of research and years of development. Once the product was on the market, anyone could have copied it.
Ironically, I am also the victim of one of the most notorious software patents: The infamous “XOR Cursor” patent, #4,197,590, filed in 1978 and granted in 1980. Way back in 1976, while a student at UC Davis, I built a computer terminal for NASA that used an XOR to move the cursor around the screen. The work was published in an obscure NASA journal. Only recently did I learn that Cadtrak collected large sums of money and successfully defended patent #4,197,590 against a number of claims, on something I invented as a sophomore computer-engineering student. Talk about “obvious to anyone versed in the art.” Had our work for NASA been more widely published, or if I’d worked in a job where I might have run into the Cadtrak controversy, Cadtrak would probably have lost the patent. Instead, I only found out about the XOR patent last year, after it had expired.
There is no doubt that software patents are being abused.
But to throw the proverbial baby out with the bathwater is to ignore the critical role patents have played in some of the greatest inventions in history. Take one example: Zantac, sold by GSK (formerly Glaxo). Zantac was said to be the single most lucrative product in the history of commerce in the world (it may have been passed by Viagra by now…) Before its invention, stomach-removal surgery was the most common surgery in the United States, because bleeding ulcers were often incurable and fatal. Now surgeons hardly remember how to perform the operation – it’s only done for morbid obesity. Zantac is a virtual miracle drug, vastly improving millions of peoples’ lives. And were not talking about headaches here. We’re talking life or death.
Zantac would not have been developed without patent protection. The cost to bring a drug to market is measured in the hundreds of millions to billions of dollars.
Unfortunately, the drug industry is abusing the patent process. For example, they often file ten bogus patents for every bona-fide patent in an attempt to obfuscate what they’re really working on. They file blocking patents to prevent new drugs that would compete with their lucrative products. They’ve been accused of using their monopolistic position for a particular disease to reap huge profits, to the detriment of society and sick individuals.
A software invention doesn’t require the same massive investment as a drug, but it’s not free, either. A true innovation, one that’s worth patenting, should come from hard work, insight and genius. And the inventor should be able to reap the benefits of his or her invention by receiving some period of exclusive use.
While I sympathize with those frustrated by the abuse of software patents, I believe it is naive to think any legislative body would vote to eliminate software patents. Reform requires realistic goals and sensible proposals. If we want to be ignored as the left-wing fringe, then we can keep on advocating an end to software patents. But if we want to be taken seriously, we should propose and lobby hard for reasonable changes to patent laws.
This article is released into the public domain by the author.
Afterword by the author:
This essay was not a definitive statement of my own opinion on patent law, in fact I agree with a lot of what Stallman and many others say: Software patents are a pretty bad idea. I wrote it more as a devil’s advocate article, because I felt that too many of the readers of Groklaw and other FOSS sites were missing perspective, and the debate seemed one sided. Too many FOSS advocates see this as a black-and-white issue, when in fact there are some very legitimate arguments for retaining software patents. In my opinion, these do not balance when weighed against the harm that patents cause, but they can’t be ignored.
If my article stirred some debate, then I have achieved my goal.
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