✍ Seven Patent Reforms While We Wait For Nirvana

Handwritten sign in a French alleyI spent a few days last week at a workshop with a number of other people concerned about software freedom and the law around it. One of the speakers gave a presentation about software patents, confirming that, regardless of whether software patents “as such” were permitted throughout Europe, it was easy to obtain patents on ‘inventions facilitated by software’. This reminded me that I’ve previously proposed ideas for patent reform that bear repetition. Coming back to it after three years, there was surprisingly little that needed changing so apologies if it’s not new to you (and thanks for being a regular reader!)

The subject of software patents is a clear one to me. I oppose software patents. They represent a profound imbalance in the social contract that justifies the granting of temporary monopolies, because they convey almost no know-how to programmers while chilling the freedom of software developers to innovate and they do so for far too long. It’s unfortunate that case-law in the US allowed this to happen; it is a disaster that trade missions have then forced other countries around the world (such as Australia) to enshrine them in law. We’re now seeing the European Commission trying to add tragedy to the situation by pressing for ACTA to criminalise patent infringement.

I spent a considerable amount of time several years ago (along with Mark Webbink of Red Hat) effectively lobbying against the “CII Directive” in Europe, and I regard the absence of software patents “as such” in most of Europe as a key factor in the growth of innovation through open source over here. The software industry flourished for years without them, and they promote greedy behaviour that chills innovation and retards the evolution of the 21st century’s participative software industry.

Having said that, I am also a realist. All the time things which are effectively software patents are allowed to exist, companies risk shareholder actions if they don’t deal with them. Consequently, most companies of any size are accumulating patent portfolios that probably include software patents in some form. While the sort of absolutist idealism that many of us in the Free Software movement exhibit is laudable and provides a visionary goal, the truth is that we are far more likely to see modest reform of the patent system than a radical revision, and the elimination of software patents seems very unlikely.

So what ought to happen? What regrettable-but-pragmatic reforms are needed while we wait for the root-and-branch revision that sweeps away software patents for good? Having a list to hand in case we’re ever asked seems a good idea! If I were king (or at least an autocratic president), I’d do some or all of these:

  1. Since most use of patents is to force licensing in an out-of-court settlement to avoid injunctive relief:
    • Limit the availability of injunctive relief to cases of prima facie willful infringement.
      It’s way too easy to get an injunction that forces your victim to stop shipping their product. Many royalty agreements come about as people settle to avoid the inevitable injunction that appears in infringement suits; it’s rare for a case to go all the way to appeals or patent invalidation. Andy has more on this. I’d also prohibit injunctive relief if patent licensing is unreasonably withheld.
    • Make it easy for patent licensees to recover their license fees if a patent is invalidated.
      The settlements people make in such cases aren’t usually affected by the invalidation of a patent later. If licensing fees had to be refunded when patents were invalidated, I believe we’d see trolls wither and die since even if their “blackmail” worked, they’d have to pay the loot back later.
  2. If we have to have software patents, their term and applicability needs control:
    • Make them last no more than five years, renewable once (maybe, and only if used in products).
      Timescales in the software industry are so short that anything more is effectively a lifetime patent.
    • Make them unenforceable against ISO standards (and possibly other bodies).
      There could be an exception that allows enforcement of patents declared to the standards committee during the standardisation process. That way, the mobile phone industry (which depends on such things) would be protected, standards participation would be encouraged and we would all know which “standards” to avoid.
    • Give immunity to implementations created in clean-room conditions for interoperability.
      European copyright law allows reverse engineering for purposes of interoperability. Patent law ought to allow the same sort of freedom. It makes no sense to encourage a free technology market with copyright law and allow its monopolistic taxation with patent law.
  3. Since software patents require far less investment than other kinds, they should have a higher standard:
    • Consider treating a failure to identify prior art more strictly.
      I got slapped about last time I suggested this, so it would need some strong safeguards, but it seems to me that since the main use of patents is to extract royalties without legal review on the basis of their existence, creating a patent which is subsequently invalidated by obvious prior art ought to be penalised.
    • Require sample code to be filed with the patent.
      Software patents currently provide nothing that a programmer finds useful. They are effectively a description of how to prove that a program is infringing, not a description of the know-how so that the knowledge of society is enhanced. Since that is actually the foundation of the social contract that justifies patents, it seems obvious to me that software patents should include a viable implementation with a free copyright license (BSD perhaps) so that after the expiration of the patent the know-how is readily available.

I’m not a lawyer so I don’t know how workable all these are, but it’s clear Something Must Be Done. So, what would you do?

18 Responses

  1. Regarding the sample code requirement, I don’t think requiring any sort of free software license is necessary, as the text of the patent is actually in the public domain, not under copyright.

  2. The arguments against software patents have a fundamental flaw. As any electrical engineer knows and software developer should know, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. Software is just a method of converting a general purpose electronic circuit (computer) into a application specific electronic circuit. As a result, to be intellectually consistent those people against software patents also have to be against patents for electronic circuits.

    • Although it isn’t my area of expertise, I believe that most of the relevant circuit designs were patented (in many cases wholesale, regardless of their utility), but have long since expired. Is anyone still bothering to patent ever-larger novel circuit arrangements (such as ICs/CPUs with billion-plus transistors), or are most of the patents in this area focused on production methods?

      As an aside, I suppose that the addition of novel components such as the memristor could cause a new land-rush on basic circuit designs, but I haven’t seen any evidence of that.

  3. @Dale B. Halling

    Software developers deals with pen and paper problems, hardware guys deals with forces of nature problems.

    Software developers do not produce any physical good.

    The patent system is for physical goods, not for instructions on a piece of paper.

  4. The guys in New Zealand shows that this is not so hard to achieve.

    I don’t understand your depressive post, abolition of software patents in nearly in the European Patent Convention, what is needed are clarifications at the national level.

    If they can do it in New Zealand, we can do it too.

    Of course the other side will come with their ABS devices, but programmers can program them.

  5. @Webmink

    “I spent a considerable amount of time several years ago (along with Mark Webbink of Red Hat) effectively lobbying against the “CII Directive” in Europe”

    Have you helped for the collection of signatures?

  6. The whole notion of people complaining about “software” patents is misguided. You might as well complain about patents on toasters, microwave ovens or televisions. The general PTO rules now only allow for patents on machines anyway, and whether that machine functions as a result of a hardwired circuit or a processor that has code is completely irrelevant. Furthermore if the software crowd is so anti-property rights, then let’s repossess all their real and personal property, and just let anyone who wants it to use it for free – you know, for the PUBLIC good. Because that’s what their attitude is really all about – it should be ok to take someone else’s ideas as long as they don’t seem to be using them at that particular moment.

  7. When the concept of a patent was introduced more than 100 years ago, technology moved slowly and it was reasonable to reward the inventor/developer with some protection while (s)he brought the product to market.

    Today it appears that the original purpose has been radically mutated into a way to either suppress any competition or extort monies from other firms large and small (the so called patent trolls).

    Since the pace of technology has picked up considerably I’m thinking it’s time to make some modifications to the patent law so that these two abuses are significantly reduced. By the by, I still believe that the idea of a patent is a good thing. I think it can still serve its original purpose of letting the inventor/developer have a head start on the competition. All we need is a slight modification to the rules.

    One, since the pace of technology has picked up, the term of the patent needs to be shortened. I’m thinking that a software patent should be good for two years with no renewal. A hardware patent, maybe 4 years. Again, no renewal. Biomedical processes may require a bit longer protection due to the investments needed.

    Two, the patent protection only applies to a company ACTIVELY developing and marketing a product based on the patent. Obtaining a patent then sitting on it wouldn’t count. This aspect might be a little hard to prove in some cases, but there are plenty of situations where it is clear that the company suing over the patent has neither the personnel nor the expertise to develop and market the patent they hold.

    Three, all patent applications should be subject to a peer review before they are submitted to the Patent Office. This would separate out the prior art and obvious submissions out leaving ideas that genuinely deserve consideration.

  8. Tom

    Your ideas are a good start – I don’t think people realize though how much of this is already done. Taking them in reverse order:

    1) Peer review: the PTO already publishes 99% of all patent applications. If people want to object to an application being considered, they need only send the Examiner prior art that they think is pertinent. The truth is, the industry and the complainers are too lazy to put their energy where their mouths are.

    2) “Actively developing”: I disagree with this for several reasons. First, it rewards people with $$ instead of people with creative ideas. IBM has tons of $$ to invest in any number of products, the fact that they can take my idea and then “own” it because they sold a product first makes no sense. I may have limited resources and be focussing on some other useful product. Besides, the goal of patent laws is the progress of science, so the reward is given to the first person to DISCLOSE to the public. It does not matter if the first discloser also makes a product, he/she is entitled to the idea as the first to enable others to make. By your analogy, if I own a piece of land, but haven’t built a house on it yet, you should be able to build a factory there mining the ground and churning out whatever you want with no repercussions. I don’t think that’s anything anyone would support, but its the same thing.

    3) Term: I don’t have a problem with reducing patent terms, but now you have to look at other factors, such as relative useful lifetime. From the time you FILE an application, until the PTO approves and you get an issued patent – particularly in the “software” arts – can take 5 – 6 years. So in reality, there is no “head start” as you suggest. Then you have to consider why one field of art is more deserving than another vis-a-vis terms. Are flash memories worth more than biomechanical implants?

    In general I don’t think the pace of technology is what distinguishes software – rather, a huge number of software developers seem imbued with a philosophy that if they can find some piece of code somewhere, they should be able to use it freely unless it was locked down. But there are few other commercial industries I can think of where the collective philosophy seems to be that it is acceptable to walk through someone else’s property and simply take what you want b/c it seems unfair that they got their first and can now claim it as their own.

  9. >The arguments against software patents have a fundamental flaw. As any electrical engineer knows and software developer should know, solutions to problems implemented in software can also be realized in hardware,

    Wrong, badly wrong. There are several differences. Firstly, when you describe a hardware implementation you are describing something concrete, whereas software is highly abstract. It’s possible to decide whether two electrical circuits are equivalent; it’s not possible to decide whether two programs are equivalent at the level of abstraction they are described in most patents. Secondly, investment: The idea that is protected by a software patent represents the first 1% of the product development process; most holders of software patents never turn the idea into a successful product. They don’t need to: it’s easier to let someone else do the hard work and then claim a share of their profits.

  10. […] that bastion of rational thought on the process, and former colleague Simon Phipps has posted a blog entry with seven things he should be done to software patents, while we wait for […]

  11. New Zealand’s Open Source Society made a very well worded submission to the recent Patents Bill in Parliament. I like it because it’s clear, to the point, and in plain english for the most part.

    A PDF is at:

  12. @JNG

    “The whole notion of people complaining about “software” patents is misguided. You might as well complain about patents on toasters, microwave ovens or televisions. The general PTO rules now only allow for patents on machines anyway, and whether that machine functions as a result of a hardwired circuit or a processor that has code is completely irrelevant.”

    As a software programmer, I don’t invest my time dealing with atoms.

    My job is to write text, and my company that is selling software should not be forced to read to follow this garbage law, because the government deciced at some point in time that people who write code should be censored by patents.

    Programming a programmable device does not change it into a new machine.

    It is already a programmable machine, which is waiting for instructions.

    Whatever instructions you give to it, the machine was already designed to potentially accomplish this task.

  13. Furthermore, since software programmers are authors in the sense of the Berne Convention, you should not bother them having to comply with patent law.

    It is like asking authors of book to check patent law because the government asked for it.

  14. I want to look at just one single very important flaw of the many that exist in our current patent system: patents are not implicit and $0.

    Unlike is the case with copyright, it takes a lot of money and extra time if you want to get **any** patent-competitive (and patent-defensive) credit whatsoever for an invention — an invention being granted for nothing more than some words on paper.

    This is acceptable (ignoring for a moment all the many flaws in our current government monopoly subsidy model) if we keep the system only among large players, but, if we are going to enforce against small businesses and individuals, then this latter group is clearly at a very unfair disadvantage.

    Looking at the costs of patenting as a tax, we have a very regressive tax. To contrast, copyright is implicit and costs $0. You create it, you can get as much copyright credit as if anyone else created it. With patents, however, this is not true at all. There is a significantly much greater hurdle that a small poor individual must overcome to get patent recognition for his/her inventions than is the case for someone that is wealthy or backed by a large corporation.

    A reason this significant unfairness plays such an important role in determining if we might promote or else hinder progress, is that this effect grows directly proportional with some other very negative effects.

    The impact of (a1) invention denial is most pronounced when the most number of people are likely to want to participate (invent, contribute, etc).

    At this point, it is also true that any granted monopoly subsidy would have (a2) the most stifling effect and (a3) abridge liberties the most because the most number of people would be participating.

    Thus, we simultaneously have (a1) the most number of people being denied protection, while we have (a2) the greatest opportunity costs from a monopoly by hand-cuffing the greatest number of people, while we have (a3) the most number of people’s liberties curtailed.

    Thus, we see that a very large effect that contributes to losses to society grows fast (to first approximation, as n**3) as we add more participants.

    The patent system — machine, process, or anything else — was not designed such as to deal with a very large number of people (or the wider public) directly being negatively affected by it. Also, there is a clear criteria written into the Constitution that progress must be promoted. Our laws never even make an attempt to measure this. We also have been passing up on a great many types of less damaging classes of incentives that can be used in areas where such incentives are actually needed. Giving a reward or advantage to someone (if we want to do this.. if we think one person stands out enough for special recognition or aid), can be done very effectively without hand-cuffing the rest of the industry with the careless doling out of unconstitutional monopoly grants. [As one example, the government can divert a tax towards grants to qualifying groups that judge and award the better inventions in society. As another, we can have tax credits for inventing, also one for producing, have the size of these vary by industry and point in time for that industry, and consider a renewal aspect if conditions are met. We could even add a royalty range to apply perhaps only among giant competing corporations, eg, pharm industries might be candidates for this.]

  15. […] (an ill system) are happy about it. They have been wishing that Stevens would retire. Here is the opinion of Simon Phipps, who names “Seven Patent […]

  16. Personally, I think software patents should be granted for a period of years not exceeding the square root of minus one year.

    Just posing it in those terms to a patent examiner might serve to separate the boys from the men. And posing it in those terms to a software patent grandee might also separate the genuinely technical inventors from the blatant frauds.

    We have nothing to lose by demanding that the people trying so very hard to sink the West’s proud technical traditions, be held to those self-same technical traditions – namely, making sense to any appropriately trained individual.

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