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 TUNIS 2005

 GENEVA 2003



The Absurdity of Software Patents
By Arun Mehta

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 entail.

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 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.

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