Software patent debate

Software patent debate is the argument dealing with the extent to which it should be possible to patent software and computer-implemented inventions as a matter of public policy. Policy debate on software patents has been active for years. [Cite book |last=Nichols |first=Kenneth |title=Inventing Software: The Rise of "computer-related" Patents |publisher=Greenwood Publishing Group |date=1998 |page=15 |isbn=1567201407] The opponents to software patents have gained higher visibility with lower resources through the years than their pro-patent opponents. [Cite book |last=Välimäki |first=Mikko |title=The Rise of Open Source Licensing |publisher=Turre Publishing |date=2005 |isbn=9529187793] Arguments and critiques have been focused mostly on the economic consequences of software patents.

One aspect of the debate has focused on the proposed European Union directive on the patentability of computer-implemented inventions, also known as the "CII Directive" or the "Software Patent Directive," which was ultimately rejected by the EU Parliament in July 2005.

Arguments for patentability

Arguments commonly given in defense of software patents or in defense of the patentability of computer-implemented. (Any counter-arguments are indicated with successive bullet points.)

Promotes development

*Patenting software inventions promotes investment in research and development.Cite web |url=http://www.wipo.int/sme/en/e_commerce/pat_help.htm |title=Ways in Which Patents can Help Your E-Commerce Business |publisher=World International Property Organization |accessdate=2008-06-19]
*The basic principles of patent law were developed before computers were invented and have served the US for centuries. The principles serve to promote the development of useful arts. [Cite web |url=http://www.law.cornell.edu/constitution/constitution.articlei.html |title=United States Constitution - Article I |publisher=Cornell Law School |accessdate=2008-06-19] Supporters of software patents argue that inventions in the software arts are useful to modern life and therefore deserve the same incentive provided for inventions in other useful arts (i.e., to promote investment in research and development).

Public disclosure

*A patent must publicly disclose the invention and so educate the public and advance the state of the art of the invention. Thus patents accelerate software development by making previously unknown and not obvious software inventions public.
*Patents must disclose how to make and use an invention in sufficient detail so that other persons of ordinary skill in the art of the invention can make and use the invention without undue experimentation. [Cite web |url=http://uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_112.htm |title=35 U.S.C. 112 Specification. - Patent Laws |accessdate=2008-06-21 |publisher=United States Patent Office] Furthermore, patents are only valid if the inventions they disclose were not known by the public prior to the filing of the patent application, or if the inventions were not obvious to those of ordinary skill in the art at the time the patent application was filed. (US laws are somewhat different from other countries. In the U.S. the focus is on when the invention was made, not when the patent application was filed).
**This is the formal law, and a rule that if violated could lead to invalidation of a patent, so is followed strictly by patent lawyers.Cite web |url=http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2165.htm 2165 |title=The Best Mode Requirement - 2100 Patentability |accessdate=2008-06-19 |publisher=United States Patent Office]
*The time delay between when a software patent application is filed, and when it becomes public is 18 months.Cite web |url=http://www.uspto.gov/web/offices/pac/mpep/documents/1100_1120.htm |title=1120 Eighteen Month Publication of Patent Applications] This is a compromise position allowing U.S. innovators to develop their software before revealing details about it and giving competitors an unfair look at their research and development, and providing the public notice within a fair amount of time to allow others to develop their own technology. The format in which software inventions are disclosed in patents (plain language text, flow charts, line drawings, etc.) allows a person with reasonable programing skills to recreate software capable of performing the ideas patented, as required by law. Copyleft publications by contrast, provide a different type of information addressing a different legal standard with different incentives.

Protection

*Organizations should be able to protect their intellectual property.
*The US congress has stated that "anything under the sun made by man" deserves patent protection [Cite web |url=http://supreme.justia.com/us/447/303/case.html |title=Diamond v. Chakrabarty, 447 U.S. 303 (1980) |publisher=US Supreme Court Center |accessdate=2008-06-19] to promote innovation.
*Some aspects of software are also covered by copyright law, but those are largely different than the protection of ideas and innovation in the useful arts provided by patent law. [Cite web |url=http://www.kuesterlaw.com/swpat.html |title=Patents for Software-Related Inventions |publisher=KuesterLaw |accessdate=2008-06-19]
*Protection for software by patents is already sufficiently limited.
*Inventions can only be patented if they are non-obvious. This reduces the chance of patents being granted on mere algorithms with no technical effect or the granting of "trivial" patents with no inventive step. [Cite web |url=http://cii.european-patent-office.org/law_practice/index.en.php |title=Computer-Implemented Inventions (CII) |publisher= European Patent Office |accessdate=2008-06-09]
*Other countries such as the US, Australia and Japan do not have the same limits on software patents and this puts pressure on Europe to expand the scope of protection.
*The limits in Europe are not sufficient in the eyes of opponents to software patents.

Economic benefit

*The United States has led in creating companies, creating jobs, because it has had the best intellectual-property system. [Cite web |url=http://insight.zdnet.co.uk/software/windows/0,39020478,39183197,00.htm |title=Restricting IP rights is tantamount to communism |publisher=ZDNet] This argument is for patents in general, particularly software patents due to the leadership the U.S. has had in this area. Therefore, software patenting may encourage the creation of software companies and jobs. [Cite web |url=http://www.patenthawk.com/blog/2005/04/patent_economics_part_5_theori.html |title=Patent Prospector: Patent Economics: Part 5 - Theories |publisher=Patent Hawk |accessdate=2008-06-19]
*Software patents resulting from the production of patentable ideas can increase the valuation of small companies. Patent lawsuits are one of the only tools available to combat large players in the software marketplace (e.g. Microsoft) and allow innovative small companies to build a market of their own or at least receive fair compensation for their investment. [Cite web |url=http://www.bizjournals.com/office_depot/consultants/?section=small_business_briefing&SID=ARRAY(0xd14f4f4) |title=Intellectual property protection is large field for small business |publisher=Office Depot |accessdate=2008-06-19]
*Small companies can normally afford to patent the innovations they may have, as a software patent costs, on average $20,000 and then many banks and other investors are available to help with litigation costs.fact|date=June 2008

International law

*International law provides that an invention in any fields of technology can be protected by patents (see Software patents under TRIPs Agreement).
*This interpretation of TRIPs contains and reflects that software should be something which is subject to patent law. [Jürgen Betten "Patentschutz von Computerprogrammen" GRUR 1995, 775-789] [Daniele Schiuma "TRIPS und das Patentierungsverbot von Software "als solcher" " GRUR Int 1998 852-858] Fact|date=December 2007

Patent challenges

*Granted patents can be revoked if found to be invalid. Development of new ideas is therefore not blocked by bad patents, and therefore the proposed negative effects of patents are moot.
*If members of the public feel that an examiner has allowed an overly general claim in a patent, they may file an interpartes examination in the U.S., an opposition in Europe, or a lawsuit in Court, to argue that claims are overly broad and should not be allowed.
**However, due to the relative recent innovation of the interpartes examination, few patents in the U.S. have been challenged in an interpartes reexamination. The Patent Reform Act of 2007 has been introduced into the U.S Congress to reform the U.S. patent system. Among other reforms, this act would introduce a full patent opposition system into the U.S. similar to the European system. If the bill passes in its current form, a patent owner would have less security in her knowledge of her rights, and a large corporation could preempt an actual inventor's rights by filing a patent before that inventors because of a change from a first to invent to a first to file system.
**Opposition proceedings in Europe can take 2 to 5 years to complete and can be very expensive.

Arguments against patentability

Opponents of software patents argue that:

Cost and loss of R&D funds

*The costs of determining if a particular piece of software infringes any issued patents is too high and the results are too uncertain.
*Should a software developer hire a patent attorney to perform a clearance search and provide a clearance opinion, there is no guarantee that the search could be complete. Different patents and published patent applications may use different words to describe the same concepts and thus patents that cover different aspects of the invention may not show up in a search. The cost of a clearance searches may not prove to be cost effective to businesses with smaller budgets or individual inventors.
*Developers may be forced to pay license fees for standards that are covered by patents. Most organizations that set standards require that members disclose any pending patents they may have that cover the standards. They also require that the members make those patents available on a nondiscriminatory basis and at a reasonable license fee. Members that hide the existence of patents for inventions that standards are based on can be subject to legal action.
*The costs of software distribution are minimal compared to the cost of manufacture of physical goods. Therefore, methods of protection intended for protecting availability of physical goods are not applicable to software, because no manufacturing is necessary for software to become widely available. Thus, patents should not apply to software.
*Patenting software inventions takes investment away from research and development. [Cite web |url=http://www.ftc.gov/os/2003/10/innovationrpt.pdf |title=US Federal Trade Commission 2003 patent report |publisher=Federal Trade Commission |date=October 2003 |accessdate=2008-06-19]

Copyright

*Traditional copyright has provided sufficient protection to facilitate massive investment in software development. [Cite web |url=http://www.nosoftwarepatents.com/en/m/basics/index.html |title=The Basics |publisher=NoSoftwarePatents.com |accessdate=2008-06-19]
*Patent protection shall confine exeptions to the authors exclusive copyright which do not conflict with a normal exploitation of the authors work and do not unreasonably prejudice the legitimate interests of the right holder according to TRIPS Art 13, taking account of the legitimate interests of the authors as third parties according to TRIPS Art 30, thus balanced in rights and obligations according to TRIPS Art 7 to promote technological innovation in a manner conducive to social and economic welfare. [Cite web| url=http://www.europarl.europa.eu/meetdocs/2004_2009/documents/pr/565/565497/565497en.pdf| title=DRAFT RECOMMENDATION FOR SECOND READING on the Council common position for adopting a directive of the European Parliament and of the Council on the patentability of computer-implemented inventions| author=Michel Rocard| publisher=EUROPEAN PARLIAMENT Committee on Legal Affairs, Cite web |url=http://www.jurpc.de/aufsatz/20080100.htm#u15 |title=pacta sunt servanda |accessdate=2008-06-19 |author=Swen Kiesewetter-Köbinger |publisher=JurPC Web-Dok. 100/2008 |language=german]
*Copyright is the right of an author(s) to prevent others from copying their creative work without a license. Thus the author of a particular piece of software can sue someone that copies that software without a license. Copyright protection is given automatically and immediately without the need to register the copyright with a government, although registration does strengthen protection. Copyrighted material can also be kept secret. Often copyright infringement is relatively easy to determine. Copyright protection has proven to be a method for protecting investment in software innovation. Some people in the software industry have asserted that the additional protection that patents afford is not needed and is not worth the downsides of expense, delay and uncertainty associated with patents. However, the differences between copyright protection and patent protection are vast. Where patent protection provides an innovator protection over a created idea, copyright protection only protects a particular manifestation of that idea. Additionally, copyright law inhibits software innovation by providing protection for software without requiring a disclosure of underlying source code or ideas, which would be required to meet the best mode requirement of patent law.

Trivial patents

*Most software patents cover either trivial inventions or inventions that would have been obvious to persons of ordinary skill in the art at the time the invention was made.
*Patent examiners rarely have a comprehensive knowledge of the specific technologies disclosed in the patent applications they examine. This is in large part due to the enormous number of micro-niches in the software field and the relatively limited number of examiners. So, patents are sometimes allowed on inventions that appear to be trivial extensions of existing technologies. Fact|date=September 2007 Others debate that these inventions are truly obvious without the benefit of hindsight. [Cite web |url=http://www-swiss.ai.mit.edu/6805/articles/int-prop/heckel-debunking.html |title=Debunking the Software Patent Myths |publisher= MIT Project on Mathematics and Computation (Switzerland) |accessdate=2008-06-19]
*If any member of the public disagrees with a patent office's granting of a patent, they can challenge the validity of the patent once it issues. This is done by an reexamination in the U.S. and an opposition proceeding in Europe. Other countries have similar proceedings. Currently about 5% of all issued patents in Europe are opposed. [Cite web |url=http://annual-report.european-patent-office.org/2004/statistics/_pdf/tab_7_6.pdf |title=The European Patent Office Homepage |publisher=European Patent Office |accessdate=2008-06-19]

Lack of patent application disclosure

*Patent applications are often undisclosed until after a new invention becomes widely used. Hence developers have no way of knowing if a useful new idea may become patented in the future and no longer available to them.
*Patent applications must be filed before a new idea becomes public. Patent applications are published 18 months after they are filed. In the U.S., however, there is a one-year grace period between when an invention becomes public and when an inventor must file. Also in the U.S., inventors can get an exception to the publication rule if they give up their rights to patents outside of the U.S. The Patent Reform Act of 2007 proposes to close this loophole and force the publication of all U.S. patent applications 18 months after they are filed. The act is still pending before the United States Congress as of Jan 2006. Because of the best mode requirement of the patent filing, this may require a patentee to reveal secrets to a competitor without any upside, so the 18 month requirement is an attempt to balance these interests.

Legal constraints

*Legal actions involving patent claims are very expensive, slow and unpredictable.
*They can be avoided by paying royalties that are properly due to patent holders.Fact|date=April 2007
*The U.S. patent system has companies in the U.S. Fact|date=March 2007 and has allowed a new class of corporation that creates further profit for US citizens by extracting patent revenue from foreign corporations without producing any tangible products.
**However, some litigation companies help small companies by providing deep pockets in case a small company's patents are infringed. The litigation company will fund the legal expenses of a lawsuit (typically 2 to 10 million US dollars) so that a small company can afford to bring a patent infringement lawsuit against a big company that is infringing their patents. In exchange, the litigation company receives a substantial fraction of the settlement.
**Litigation companies also provide a means for investors in small companies to recover some of their investment should the small company go out of business. The litigation company will buy the patents and investors will recover at least some of their funds. Litigation is possible to avoid by licensing from a patent holder or creating workarounds for patented techniques.

Patent infringement

*Enterprises that receive numerous patent infringement notices cannot afford to simply pay what each patent holder demands.
*If an enterprise uses algorithms that are covered by a large amount of other people's patents they should expect to pay high fees.
**Large companies regularly try to enforce their patents on smaller corporations. However, it is not possible to completely avoid patented technology, because no mechanism for avoiding patent-related risk exists other than innovative insurance and investment instruments provided by many companies.

ME disadvantage

*Software patents may affect open source and small and medium enterprises (SMEs) that do not have a large defensive patent portfolio.
*If SMEs are not as inventive as large corporations then society would benefit from their removal.
** The number of patents filed is not a measure of inventiveness. The value to society should not be measured by inventiveness.
** Open source and small to medium companies might believe they are inventive in creating new ideas and software, but maybe blocked from doing so by an existing patent on one of the algorithms they desire to use, originally created another person, that ends up blocking all uses without a proper license.

Ideas are not patentable

*Granting a patent on an idea when it is not sufficiently offset by a balanced disclosure of an associated method of manufacture of material goods will harm society. It only prevents use of the idea without the corresponding benefit to society.
*For a software or computer-implemented inventions to be patented, it needs to be disclosed in a manner sufficient clear and complete for one skilled in the art to reduce it to practice.
** Since all software are just descriptions of ideas, it is not clear which software can be inventions and which cannot.
** All software can be reduced to practice trivially by running it in a computer, but the courts are undecided about how this affects patentability.
** Source code for software is the preferred form for making modifications to the software, so it would seem that "sufficiently clear" should mean "source code for the invention is disclosed".
*Pure mathematical algorithms are not patentable in the United States (see State Street Bank decision). A method for producing a concrete useful or tangible result, however, is patentable. Hat method is not rendered unpatentable merely because it incorporates a software or mathematical algorithm. Similar conditions for patentability apply in other jurisdictions, such as Japan and Europe.

oftware patents are not useful

*Some Patent disclosures in the software field are not readable to some programmers; they are neither used nor useful as a source of technical information. [Cite web |url=http://news.zdnet.com/2100-9595_22-5076320.html |title=Software patents need shelter from the storm |publisher=ZDNet - Tech News] Though a skilled programmer usually has little trouble generating code to solve a problem when presented with a detailed algorithm for the solution.

Patent examination is too slow

*For 2005, the projected average pendency for patent applications in the "Computer Architecture, Software & Information Security" department of the U.S. Patent and Trademark Office was 3 and a half years. [Cite web |url=http://www.uspto.gov/web/offices/com/annual/2005/060404_table4.html |title=Table 4: Patent Pendency Statistics |publisher=United States Patent Office]
*In Europe, the average time taken to grant a patent in any field of technology was almost 4 years in 2005, [Cite web |url=http://annual-report.european-patent-office.org/2005/business_report/patent_process/index.en.php#pru |title=The patent process |publisher=European Patent Office] with the computer related fields probably being greater than the average. By the time patent applications issue as patents, the inventions claimed therein will be perceived to be already in the public domain. This hurts inventors who see their inventions copied without permission, investors who fail to earn a suitable return on the salaries they paid to inventors and the public, which is faced with the uncertain prospects as to exactly what inventions are in the public domain and which inventions will be covered by a pending patent application.
**Inventors can use a petition to make special to accelerate the examination of their U.S. patent applications. Accelerated examination can also be requested in Europe.
*Most patent applications are published 18 months after filing, so third parties are usually made aware of prospective patent rights well before any patent is granted.
**Patents may be very different from the published applications, so the published application may only serve as a guide to the final scope of protection.

Purchase of existing patents

*Software patents allow investment companies to purchase patents from others and generate lawsuits to collect revenue off the monopoly granted by the patent. [Cite web |url=http://www.guardian.co.uk/technology/2005/jun/20/comment.comment |title=Patent absurdity] |last=Stallman |first=Richard |publisher=The Guardian |date=2005-06-20 |accessdate=2008-06-19] Some believe it to be offensive that a company that does not create software might benefit from a patent for software. Others understand that these patents are generally purchased by highly speculative investors from software producing companies that were looking for investments (e.g., companies having financial trouble, companies moving out of a particular business area, etc.) and thereby provide needed capital investment into the software industry. [Cite web |url=http://www.spectrum.ieee.org/mar07/4943 |title=Hooray for the Patent Troll! |publisher=IEEE Spectrum |last=Rubin |first=Steven |date=March 2007 |accessdate=2008-06-19]
*These investment companies are sometimes referred to by the derogatory terms "patent parasites" or, more commonly, patent trolls and are a consequence of the possible high damage awards that litigation in the US may provide, not of software patents. [cite web |url=http://www.thelawyer.com/cgi-bin/item.cgi?id=116783&d=122&h=24&f=46 |title=Beware of the troll|publisher=The Lawyer|date=2005-09-26|accessdate=2007-07-27 |last=Morag |first=Macdonald ]

See also

* Criticism of patents
* Debates within software engineering
* European Information, Communications and Consumer Electronics Technology Industry Associations (EICTA)
* Foundation for a Free Information Infrastructure (FFII)
* Free Software Foundation
* Irish Free Software Organisation
* List of software patents
* Public Patent Foundation
* Software patent
* Software patents and free software
* Software patents under the European Patent Convention
* Software patents under United Kingdom patent law
* Software patents under United States patent law
* W3C

References

External links

Papers

* [http://www.researchoninnovation.org/patent.pdf Sequential Innovation, Patents, and Imitation] , by James Bessen and Eric Maskin, Discussion paper, MIT (2000)
* [http://ijlit.oxfordjournals.org/cgi/content/full/14/3/257?ijkey=rF2MI0t8NYrGuJJ&keytype=ref Software Patents – Boon or Bane for Europe?] by Andreas Grosche, "International Journal of Law and Information Technology" 2006

Neutral sites

* [http://www.bitlaw.com/software-patent/index.html Software Patent Index] - History and current practice of the USPTO to granting software patents.
* [http://www.iusmentis.com/patents/software/epc/ Software patents under the European Patent Convention] explains European Patent Office practice when examining patent applications involving software.
* [http://www.jpo.go.jp/tetuzuki_e/t_tokkyo_e/Guidelines/PartVII-1.pdf Examination Guidelines for Software patents in Japan, Japanese Patent Office]

Sites in favor of patents on computer-implemented inventions

* [http://www.bakosenterprises.com/IP/B-10152005/prior-issue-links.html Insurance IP Bulletin] Articles regarding patents in business, which use software.

Sites against software patents

* [http://www.nosoftwarepatents.com No Software Patents - a web campaign supported by companies]
* [http://perens.com/Articles/Patents.html Software Patents vs. Free Software] by Bruce Perens
* [http://www.advogato.org/article/7.html Patent information for free software developers] - an analysis of the situation in the US from a patent attorney.