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Making the Case Against Software Patents? 346 346

heretic108 asks: "I'm an open-source developer in a small western nation, which is slowly starting to take interest in Open Source, but whose (still MS-dominated) government is currently considering adopting a software patents regime similar to USA. This nation boasts a smart and feisty IT community, who have been terribly under-represented in government. I have a meeting in a week with a prominent member of the legislature (who has IT portfolio interests), during which I will have the opportunity to put the case against software patents. I'm asking for help in assembling information for use in the anti-patents case. Thank you dearly for any and all help you are able to provide here."

"I'm looking for references that cover the following subjects:

  • Triviality of some patents
  • Patents as anti-competitive instrument
  • Patents' discriminatory nature - difficulty faced by smaller developers with patent enforcement
  • Costs of patent searches, and their impact on the creative flow of software development
  • Clear evidence that a software patents regime is squeezing small and independent players out of the industry and creating an oligopoly for the largest players
  • Clear evidence that under the software patents regime, the entire 'space' or public commons of programming concepts is being subsumed into private ownership
  • Clear evidence and examples of patent law being abused and having a net anti-innovation effect
  • Anything else you have bookmarked, or can google upon, which can help build the most solid case.
The most desirable materials will be those written and/or compiled by the most respected academic, business, technical and legal minds. I'd like the front page of the folder to sport a series of punchy quotes.

(Also, if anyone can find the source of the quote attributed to Bill Gates arguing that the modern patents regime, if it existed decades ago, would have slowed the industry to a standstill).

Also very desirable will be testimonials from senior staff of small to medium R&D and body-shop houses, truthfully showing the negative effects patents have had on their ability to compete.

And, very importantly, any brief testimonials from indepenedant developers who have not intentionally stolen intellectual property, but have actually been squashed under patent laws."
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Making the Case Against Software Patents?

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  • by Anonymous Coward on Wednesday September 04, 2002 @01:16PM (#4195775)
    Slashdot topic 155 []
  • by dunham (35989) on Wednesday September 04, 2002 @01:16PM (#4195778) Homepage
    A copy of Donald Knuth's argument against software patents can be found on the LPF's web site []. He is a very well respected computer scientist and programmer and makes a good argument.
  • by Cyclops (1852) <> on Wednesday September 04, 2002 @01:21PM (#4195810) Homepage
    Status of Tux2? []
  • by binaryfeed (225333) on Wednesday September 04, 2002 @01:21PM (#4195814) Homepage
    Sign the petition to get rid of software patents: .html [] And for anyone who wants info on why software patents are bad: -enough.html []
  • by erroneus (253617) on Wednesday September 04, 2002 @01:22PM (#4195823) Homepage
    They lock up issues like "compatibility" and "interoperability."

    Suppose there are aspects of a communication protocol (say, SMB) are patented by a company. All the reverse-engineering and data collected packet-sniffing in the world are useless when the technology is patented. Compatible software written totally from scratch still falls [victim] under the hypothetical patents.

    It is, of course, very anticompetitive.
  • by webword (82711) on Wednesday September 04, 2002 @01:23PM (#4195831) Homepage
    Dave has written a ton of stuff...some of it might be useful.

    A day without programming? []

    Patents and the W3C []

    Killer Patents []

    Amazon's XML Interface []

    Patents, lawsuits plague the Net [] (Dave is quoted.)

    Notes on competing []

  • Somewhere to start (Score:2, Informative)

    by Fluid Donkey (97587) on Wednesday September 04, 2002 @01:24PM (#4195836)
    This site [] at MIT gives a good overview. Even though it has a more american slant I think the arguments are pretty universal.
  • Read (Score:3, Informative)

    by vluther (5638) <vid@l[ ] ['inu' in gap]> on Wednesday September 04, 2002 @01:25PM (#4195843) Homepage Journal
    Read the July issue of Forbes magazine, which talks about patents and how they can help, but how they are being used to not help the economy.
    Link 0. This is the entire issue

    Link 1 []

    Link 2 []
  • by soundbyt (515293) on Wednesday September 04, 2002 @01:28PM (#4195868)
    Found sever google references to it citing 'Bill Gates, 1991 memo'. FWIF Here's a link to what is supposed to be the actual memo. [] (

  • by Anonymous Coward on Wednesday September 04, 2002 @01:32PM (#4195892)
    Australia? []
  • Re:Great. (Score:5, Informative)

    by Salsaman (141471) on Wednesday September 04, 2002 @01:43PM (#4195947) Homepage
    Well, you do realise in most countries outside of the US, patents can't be granted on software ?

    Don't confuse patents with copyright - programs can and are copyrighted automatically by the author(s). However, in most countries you can't patent a software method. So for example, the one-click patent wouldn't stand outside of the US.

    However, certain large corporations are lobbying the EU to introduce software patents. And guess who would be the only ones to benefit from this ? Yes, that's right, those same large corporations.

    For more information. check out []

  • by Anonymous Coward on Wednesday September 04, 2002 @01:51PM (#4195986)
    You could extend your argument a bit to point out that patents can be (and have been) abused for a very long time, and not just in the software arena. If you do this carefully you can diversify your argument without diluting its impact.

    A good recent example is the story [] in the MIT Technology Review [] magazine about the history of Glenn Curtiss and his role in the development of aviation. In the article, the writer describes the bitter patent battle between Curtiss and the Wright Brothers -- and makes very clear that the Wrights attempted to abuse the patent system to advance their own interests instead of advancing Progress in the Useful Arts. This was in the first decade of the 1900s! Curtiss, on the other hand, made a point of always making his ideas (though not necessarily their specific implementations), including those on which he held patents, available to everyone as a matter of principle. The article strongly suggests that aviation in general would have been significantly hindered if the Wrights had ultimately prevailed (they didn't).

    The excerpt on the web site doesn't contain the passages to which I alluded, so you will either have to purchase a reprint or find someone who has a copy. But it's definitely worth a look in advance of your meeting.


  • by sam_handelman (519767) <{skh2003} {at} {}> on Wednesday September 04, 2002 @02:04PM (#4196054) Homepage Journal
    Quoth the poster (heretic108):
    I worked for the Australian subsidiary of Wang Labs, at the time when Wang was the #2 computer company in Australia.

    You go to the user page ( in this case) and read a few articles at random - you can usually find out where someone is from.

    Given that you're speaking with an Aussie legislator, I recommend a national sovereignty / defense argument. You should point out that likely rivals in the region of the continent of Oceana - I speak in particular of India - have huge, established software industries that could prove a threat to Australia if Australia doesn't maintain software autonomy. It's okay to be vague, but use some everyday words as if they had some specific technical meaning in terms of "information warfare over the next century."

    That ought to persuade the nuevo-Thatcherites in your xenophobic government.
  • by mickwd (196449) on Wednesday September 04, 2002 @02:33PM (#4196238)
    Sadly, I don't think the person your are about to see is likely to be impressed by reading Slashdot.

    However, I DO think they might be impressed by The UK Government's Conclusions to the question: 'Should Patents be Granted for Computer Software or Ways of Doing Business' []
  • by The Wing Lover (106357) <> on Wednesday September 04, 2002 @02:53PM (#4196360) Homepage
    In this post [], he mentions being glad to have moved out of Australia, and that he is now living in New Zealand. That post was less than a week old.
  • by GlassHeart (579618) on Wednesday September 04, 2002 @03:16PM (#4196500) Journal
    Noted Professor Jeffrey Ullman also wrote a paper called Ordinary Skill in the Art []. His conclusions are:
    • The patenting of algorithms and the software that embodies them leads to inequities as often as it protects true innovation and genuine innovators.
    • The standards for innovation set by the CS Theory community should be given more weight when deciding the validity of a software patent.
    • There should be an effort to educate the courts on the distinct nature of innovation in computer software, and to help distinguish innovation from wishful thinking or the fantasies of people who are unaware of the state of knowledge.
    He has been involved in many patent-related cases, and is recognized as an expert witness in these cases.
  • My arguments (Score:2, Informative)

    by Ed Avis (5917) <> on Wednesday September 04, 2002 @04:36PM (#4196946) Homepage
    I think you should make the case based on economic welfare, since arguments based on freedom or fairness are not considered legitimate by some (and will help opponents to characterize you as extremists, idealists, etc - in fact it is the everything-should-be-patentable campaigners who are taking the ideological position).

    I wrote to the European Commission when they asked for comments on their (rather biased) study of software patentability; I have pasted in these comments below.

    Comments on the study 'The Economic Impact of Patentability of
    Computer Programs'

    Ed Avis,

    These are comments I would like to submit to the Commission about its
    study on software patentability. The order of the comments follows
    the order in which the study is presented, which means that comments
    on the study's conclusions come first.

    At the end are some more general comments on whether it is useful to
    grant patents on computer programs.


    * Open source development

    I feel that the authors of the report have misunderstood the position
    of open source developers summed up in the quotation from one open
    source developer. This developer points out that while the platform
    itself is open, individuals are free to create proprietary products
    based on that platform. This is usually true. and it is what
    copyright achieves. But I know that most open source developers would
    not support the idea that a particular use of their platform could be
    patented by one company which then prevents others from making their
    own implementation---in effect making the platform itself proprietary,
    since it no longer provides an open base for competing developers to
    build on.

    The anonymous developer comments: `The goal of open source is to make
    sure that IP rights or other proprietary rights do not interfere with
    that platform'. This is the case for copyright on software, but
    software patents often do interfere with a previously open platform
    and limit choice. This is particularly true given the broadness and
    triviality of many software patents currently being granted.

    Actually, I feel that the emphasis given to open source developers is
    misleading. Certainly the individual developer is vulnerable to
    software patents, but then so are all development groups not big
    enough to fight back. It just happens that unpaid open source
    developers are at one end of the scale. (They are also more
    vulnerable because they cannot keep their development secret, a point
    I'll mention again later.)

    * Software patents necessary for American SMEs

    Commenting on the situation in the United States, the authors write:
    `On the one hand there is abounding evidence that the profitability
    and growth of independent and SME software developers in the States
    has often been to a significant extent dependent on possession of
    patent rights'.

    It should be clear that this does not imply that the existence of
    software patents helps small and medium-sized developers to grow. It
    could just as well be true that the legal climate is such that a small
    company without sufficient patents to use defensively is vulnerable to
    attacks from large patent-holding corporations, and thus it is
    necessary for small companies to acquire patents if they are to
    attract investment and grow. In fact I believe that this is the case.
    The fact that, in the present US legal climate, it is necessary for
    small firms to hire patent lawyers and start acquiring patents does
    not mean that small firms in Europe would be helped by the
    introduction of a similar system. It might just be a burden they
    would rather do without.

    Also remember that a fast-growing, highly profitable company which
    holds many patents does not necessarily indicate a healthy
    marketplace. It could be that this company is doing well through
    blocking competitors from entering the market and through demanding
    licence money from other firms. Such behaviour does not usually help
    consumers, who would prefer an open and competitive market. It might
    be better to have several companies, not quite as fast-growing or as
    profitable, who are competing freely and growing the total size of
    this market segment faster than a single monopolistic firm.

    It is jumping to conclusions to say, as the report does, that
    patentability of computer programs has helped the growth of SMEs in
    the US. All one can conclude is that in a market where your
    competitors are filing for patents, you need to do the same yourself
    if you expect to grow.

    * Do software patents help small companies?

    The authors claim that lack of software patents in the early days of
    the computer industry made it easier for large companies to copy the
    ideas of smaller developers. But is there any evidence that
    widespread software patentability has stopped this trend? A small
    developer holding one or two patents on a key idea will not stand a
    chance in a legal battle with a large developer holding thousands of
    patents, many of them vague or extremely broad but nonetheless
    granted. Software patents certainly do not level the playing field in
    favour of the small developer---except perhaps for the company which
    does no development work itself (thus not infringing on anyone else's
    patents) but distorts the market by accumulating patents on whole
    classes of computer programs.

    (There is also the implicit assumption that it's a bad thing for other
    companies to market their own products based on a particular idea.
    But in order for competition in software to exist at all, this must be
    allowed. The advantage of being first to market is particularly great
    in the software industry, there's no reason to create extra barriers
    to entry for those who are trying to bring competing products to

    * Invalid patents

    The report acknowledges that many software patents granted in the US
    are invalid, but doesn't consider this important: `Their existence ... is hardly a significant barrier to software developers.'. This is
    to seriously underestimate the problem.

    Even an infringement suit for an invalid patent requires hiring a
    patent lawyer and a trip to court. Even if you win, the process can
    be cripplingly expensive for a small software developer, impossible
    for an individual or start-up. (This is true even under a loser-pays
    system, since it can never be absolutely certain who will win.)
    Multiply that by the sheer number of vague, possibly invalid patents
    held by many large companies, each one of them the subject of
    infringement proceedings, and you will see that invalid patents are
    just as much a problem as valid ones.

    The overheads of software development are much lower than those in
    most industries where patents are used; so the costs of fighting
    patent lawsuits are proportionally much higher. Any patents, invalid
    or otherwise, represent a real risk for the small software developer.
    Large companies can usually countersue with their own collection of
    patents and reach a cross-licensing agreement, so invalid patents
    aren't so much a problem for them.

    * Current quality of software patents

    The report concludes that we need to make sure European patent offices
    (national and EPO) do not fall into the same trap as the USA, to make
    sure they do not grant `obvious' patents. (It's not clear whether
    this means obvious to a software developer, or obvious to a patent
    examiner, which in practice is rather different.) There's no evidence
    that this is happening. If patentability is to be extended, it would
    be prudent to clean up the patent examination procedure before such an
    extension, rather than afterwards.

    * Antitrust law

    Anti-trust regimes are not an effective way to stop companies abusing
    their software patent portfolio. The speed at which the courts work,
    and the speed at which the software industry works, mean that any
    possible action would come far too late and take far too long. It is
    not good to introduce one layer of litigation through software
    patentability, and then try to fix it with another legal process.
    Better to allow companies to write software without the threat of
    legal action hanging over them, and let them respond quickly to market
    demand without waiting for courts to make decisions.

    * Options presented for changing the law

    On aims II and III, the report presents three options. I feel that
    these options are misleading and do not show the whole story.

    OPTION 1: The report tries to present the status quo as being that
    computer programs are patentable, and suggests that the `computer
    programs as such' exception be removed from the EPC. But this is not
    maintaining the status quo at all. The EPO has very cleverly managed
    to reinterpret the law to make an arbitrary and unclear distinction
    between `computer programs as such' and `computer programs not as
    such'. This happened very recently in the lifetime of the EPC; if it
    were really the intention of the EPC's authors, surely it would not
    take several decades for this new, enlightened interpretation to

    Since the EPO's decision was not based on any economic criteria or any
    research of its effect on the software market, there is no reason to
    suppose that it represents any improvement on the previous, clear
    position that computer programs were not patentable.

    The criterion of `technical effect', which is supposed to distinguish
    between software as such and software not as such, does not have any
    clear meaning. Patents have been granted for purely abstract,
    mathematical algorithms such as data compression on the basis that
    this has a technical effect---the effect being that you might use such
    an algorithm to encode data travelling across a network, for example.
    But the same could be said of any algorithm to translate data from one
    format into another, so at a stroke all network protocols and file
    formats become patentable. Patents have been granted on user
    interfaces, so we can assume that any software whose purpose is user
    interaction is not software as such. So already all means of input
    and output are considered as having a technical effect; and for any
    other software patent application it is not difficult for a computer
    programmer to think up a possible technical effect which gets round
    the `software as such' exclusion. For example, the EPC rejected a
    patent application for a homophone checker on the grounds that it did
    not have a technical effect---but conceivably one could use such a
    program to get more efficient data compression, thus putting it into
    the ever-expanding category of software not as such.

    I'm sure you have seen the software patent `horror gallery' listing
    very broad patents granted by the EPO on setting prices in a Website
    (WO9615505), dynamically generating web pages from a database
    (EP0747840), printing ingredients required for a recipe (WO9529453)
    and many others. Apart from the serious implications for competition,
    these should be sufficient proof that the notion `technical effect' is
    in practice just used as an excuse to grant patents on as wide a range
    of programs as possible.

    It's hard to imagine the EPC ever ruling that something previously
    considered a technical effect is no longer to be counted as one---the
    border between patentable software and excluded software would move in
    one direction only. For these reasons, there is no real difference
    between Option 1 and Option 2.

    But there is an option left out:

    OPTION 0: Uphold the status quo as clearly defined by the EPC, making
    it clear that computer programs are not patentable, just as methods
    for playing games and methods for doing business are not patentable.
    This would not stifle competition and innovation in the software
    market; it would not expose small developers to legal threats; it
    would mean that companies can get on with writing software and not
    fighting court battles.

    I urge you to consider this option too, and to recognize that the
    EPO's fig-leaf of `technical effect' has no real meaning when applied
    to software.


    Since I am not a lawyer, I will not write much on Section II, but I
    would like to say a few things about lawmaking:

    Firstly there is the obvious point that there is a fundamental
    difference between a physical invention or process, and something
    which is purely information such as a picture or computer program.
    Making a clear, legally enforceable distinction between the two has
    already been managed by copyright law, so there is no reason why
    patent law cannot do the same.

    But more importantly, the patent system exists only to serve economic
    interests. Any decision on what is patentable should be made on
    economic grounds and not by trying to carry across decisions made for
    a different area.

    So removing exemption of computer programs on the grounds of
    `technical effect' alone is not sensible, because having a technical
    effect and being economically justified are two unrelated criteria.
    What is worthwhile for other industries may not be worthwhile for
    software, and vice versa.

    Finally, on the question of whether software is `technology', I would
    like to point out that while marketing departments often refer to
    software as `technology', you will not usually hear a programmer use
    this term.


    Section III has a mixture of pro- and anti-swpat viewpoints. But
    those which favour software patents, or at least suggest that the
    anticompetitive effects they cause would not be too great, tend to be
    founded on the assumption that `the system works properly'. So large
    numbers of bad patents are not being issued, companies cross-license
    on reasonable terms, antitrust laws work swiftly and effectively, and
    so on. But this idealized software patent world is not real. The
    software patents being granted by the EPO are frequently of very poor
    quality, just as bad as those in the US if not worse. And it only
    takes a single firm to start aggressively enforcing its software
    patents to cause serious trouble to every other firm which is not big
    enough to have its own defensive portfolio.

    The claim that `the existence of a patent system ... discourages
    business secrecy' may be true in other areas, but not for software.
    Many companies cannot disclose their source code, even if customers
    want it, for fear that this would allow others to trawl through it for
    possible infringements. On the other hand, the typical software
    patent will not disclose anything of value; either it is too broad and
    vague to give any details, or contains ideas which would occur to many
    programmers thinking about the same problem. (There are some software
    patents which contain descriptions of new algorithms, but in these
    cases the algorithm would have been disclosed anyway without a patent,
    if it is to become any sort of useful standard.) So software patents
    actually encourage business secrecy and discourage disclosure.


    The hard work of software development is usually not in thinking up an
    idea but in implementing that idea. This is particularly true given
    the obviousness of many of the ideas that the USPTO and EPO consider
    patentable, in some cases simply because they involve a computer. It
    is not like (for example) the drug industry where many years and lots
    of money must be expended to generate new patents. Rather, thinking
    up new ways to solve a problem is what a computer programmer does
    every day, and the same idea will almost certainly have occurred to
    many programmers in the past. The expense comes in implementing and
    testing code based on that idea.

    The work of implementation is already protected by copyright, which
    provides a good balance between incentives for development and a
    competitive marketplace. Software patents tip that balance too far
    towards monopoly, and in any case it's unlikely that the first company
    to file a patent actually `invented' the idea.

    But even if, in theory, it were possible for the patent office to
    examine all the millions of lines of program code currently in use and
    grant patents only on genuinely new algorithms, the price would still
    be too great. The software market is unlike most others in its strong
    requirement for compatibility; competing products need to read each
    others' file formats, for example. A patent on a file format, or on
    an algorithm used to encode that format, allows one company to block
    all competing products that might perform the same function as its

    Developers are expected to check every line of their code against
    thousands of existing patents. Consider that the USPTO has allowed
    the same algorithm (LZW compression) to be patented twice, by Unisys
    and by IBM. If even the patent office cannot check an application
    against previous patents, what hope is there for the developer
    checking a 500,000 line program? Copyright, on the other hand, does
    not have this problem; you have legal certainty that if you have not
    copied anyone else's work, you are not infringing. Copyright works
    well for computer software; patents do not.

    In short, the possibility of infringing on thousands of software
    patents is a serious burden for small companies, and patents on file
    formats (or on business methods, which could effectively be granted if
    the business method involves a computer) affect even large companies.
    The result is reduced choice in the market and less software available
    to the consumer. And patents on file formats mean total monopoly with
    no possibility of competing, compatible programs being written.

    The fact that American firms are stuck in this mess is not a reason to
    inflict it on European companies. I urge you to recommend that the
    existing wording of the EPC be upheld, so that computer programs
    (along with methods for playing games, doing business, and so on) are
    made explicitly not patentable.

    Also, any change to the EPC which allows the EPO to decide for itself
    on changes to the rules would be very unwise. The patent office is
    not equipped to make a proper economic analysis of changes to the
    system. Past experience has shown that the EPO would move the
    frontier of patentability in one direction only.
  • by borgheron (172546) on Wednesday September 04, 2002 @09:17PM (#4197968) Homepage Journal
    It was drafted by me, with help from RMS and Bruce Perens. The arguments it presents are, I believe, representative of the problems with the patent system in the US today.

    See my sig below...
  • (Score:1, Informative)

    by Anonymous Coward on Thursday September 05, 2002 @08:50AM (#4199406)
    There is a website which documents the whole
    mess and lobbies massivly against software

    It's called

It is easier to write an incorrect program than understand a correct one.