Software patents have a dubious legal basis, are unworkable, and
hamper industrial growth. They started in the US, where you are not
allowed to patent the laws of nature, and in two US Supreme Court
cases (Gottschalk v. Benson, 1972, and Parker v. Flook, 1978) the
Court extended this principle to computer algorithms and software
techniques. Yet, in the 1981 case Diamond v. Diehr, the Court said
that just because there was software in an industrial process didn't
mean that a patent could not be granted. While hardly in the spirit
of the judgement, based on it, software patent floodgates were opened
- for instance, IBM alone, in 2002 was issued 3411 patents, most of
them relating to software.
While conducting any patent search is a slow process, we have far
more serious problems in software. Any reasonably sized computer
program contains literally thousands of algorithms and techniques,
each considered patentable by the standards of the patent office.
Most of these, however, are not considered that significant by other
programmers, who, when faced with similar problems, would routinely
come up with similar solutions.
There is no system for even classifying computer algorithms, let
alone performing a database search. To call the relevant literature
vast is an understatement. It includes user manuals, billions of
lines of source code published on the Internet and elsewhere, and
articles in different languages in thousands of computer magazines,
electronic and print. Whereas a scientist in a traditional field may
produce 20 or 30 pages of published material each year, a programmer
easily produces that in a couple of days. Even if it were possible to
check all of them, no company could afford the delay this would
It is therefore unreasonable to expect a software company to license
a patent for every algorithm it uses. Even if a company does find out
what patents it needs to license, that is not enough: the software it
writes might violate a patent yet to be issued. If software patents
were to be rigorously protected, it would stop innovation in software
in its tracks.
For the software industry, the implications would be catastrophic:
since software does not wear out, the only way the companies that
produce it can continue to make money is to innovate, to add new
features to existing software. Since all other industries rely
heavily on software innovation for their own progress, the impact on
them would be serious too. An example is the attempt to introduce
MPEG-4, a new movie compression standard, highly significant for the
consumer electronics and media industries. This, however, is held up
by the 16 owners of 29 patents involved.
Large software companies have found a work-around. Each of them owns
many software patents, which they have licensed to each other. With
the threat of lawsuits, they can easily exclude emerging competitors.
This has serious implications for poor countries like India, which
are trying to make a breakthrough in the global software market. The
consequences are particularly damaging for small companies, possibly
run by students out of a garage or dorm room, which do not have the
resources to perform the required searches, and pay for the patent
licenses. It is such companies that have been the source of
substantial innovation. Software patents, therefore, help create an
unhealthy oligopoly in a critical industry segment.
It can also be argued that software patents are unnecessary. The
companies that have been most successful in this business, such as
Microsoft, did not rely on patents for their competitive edge. There
is now a vast body of open source software which other developers use
freely without fear of being sued for patent violation, in a process
antithetical to the very concept of patents.
Software patents are an excellent illustration of the absurdity of
patenting ideas and mathematical equations, particularly in an
electronic age where information is easily replicated and
distributed. This discussion, however, is not new: Thomas Jefferson,
who ran the US patent office and knew the patenting process
intimately, had this to say: "If nature has made any one thing less
susceptible than all others of exclusive property, it is the action
of the thinking power called an idea, which an individual may
exclusively possess as long as he keeps it to himself... Its peculiar
character, too, is that no one possesses the less, because every
other possesses the whole of it. He who receives an idea from me,
receives instruction himself without lessening mine; as he who lights
his taper at mine, receives light without darkening me. That ideas
should freely spread from one to another over the globe, for the
moral and mutual instruction of man, and improvement of his
condition, seems to have been peculiarly and benevolently designed by
nature, when she made them, like fire, expansible over all space,
without lessening their density at any point, and like the air in
which we breathe, move, and have our physical being, incapable of
confinement or exclusive appropriation. Inventions then cannot, in
nature, be a subject of property."
The problem for industry, though, as highlighted in a 2000
Pricewaterhouse Coopers study, is that 78% of the total value of
American S&P 500 companies are intellectual assets, which they are
desperate to protect. While they recognize the dubious nature of
software patents, they have no alternative means of protection: some
attempts were made to apply copyright law, for instance when
Microsoft Windows copied the Apple-style graphic user interface, but
these attempts were unsuccessful in court. As they say, if all you
have is a hammer, every problem looks like a nail.
Faced with complete corporate intransigence on the issue, civil
disobedience seems the only means for civil society to arrive at a
sane solution. This is not unlike the situation Mahatma Gandhi faced,
when the British rulers of India imposed a tax on salt, which he
overcame by launching his famous salt march, culminating in his
illegally picking up salt from the sands of Dandi beach. Indeed,
ideas are the salt of the information age, justifying similar action.
Arun Mehta email@example.com is a New Delhi based activist and educator. Currently he is Director in the film and TV company Kaleidoscope Plc., Chief Technical Officer in Net Radiophony India Plc. and President of the Society for Telecommunications Empowerment.