Software Patents are EVIL

By Tony Marston

30th August 2006

A lot of words are being spoken at the moment about software patents and whether they are a good or bad thing, so I am going to add to the debate by contributing my own personal opinion which can be summed up in a single sentence:

Software should be subject only to COPYRIGHT and never to PATENT.

While both patents and copyright grant the inventor or creator exclusive rights to his invention or creation, there are subtle differences.

Patents are for inventions

Patents are generally intended to cover products or processes that possess or contain new functional or technical aspects; patents are therefore concerned with, for example, how things work, what they do, how they do it, what they are made of or how they are made. Patents are for physical things such as:

A patent grants "the right to exclude others from making, using, offering for sale, or selling" the invention or "importing" the invention. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.

Copyright is for original works of authorship

Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. This covers such things as:

Copyright gives the owner of that copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. In other words, only the copyright holder has the "right" to "copy" that work.

The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine.

Note that currently both the UK and US regard computer programs (software) as being subject to copyright, not patent. It is only computer hardware, the mechanical devices, which is covered by patent. For those of you who are intellectually challenged I shall repeat that statement again:

Patents are for hardware only. Software can only be protected by Copyright, not Patent.
Important Points

There are some important points which should be kept in mind when engaging in this debate:

  1. It is not possible for a work to be the subject of both patent and copyright, so it must be either one or the other.
  2. If a work can only BE one or the other, then it surely follows that it can only BE ELIGIBLE for one or the other.
  3. If a work is eligible for copyright then it should not be eligible for patent, therefore it should only be protected by copyright.
  4. Software is a written work which expresses the ideas of its author, and which can be copied just like any other written work, either mechanically or digitally. This fact alone, that software can be copied just like any other written work, should make it obvious that it should be subject to the laws of copyright. It does not require to be remanufactured like a piece of hardware, so why should it be covered by a hardware licence?.
  5. The fact that software is compiled and executed in a computer in order to deliver its intended result should also be irrelevant. The recipe in a cookbook needs to be implemented with kitchen utensils in order to deliver its intended result, but does that mean that the cookbook has to be the subject of patent instead of copyright?

There is also some argument about software which comes embedded in a device and cannot be loaded, reloaded or updated by the user, and can therefore be considered as being an integral part of the hardware. Should this be subject to patent, along with the device? Why should it? Software is software however it is installed, and the fact that it comes embedded in a piece of hardware should be irrelevant. It is still a piece of written work with an author, and can still be copied like any other written work, so why should the method of installation change its status?

A difference in legal enforcement

Some people think that patents and copyrights are equivalent: a patent confers an exclusive property right in the field of mechanical inventions, while copyright confers an exclusive right in the field of literary or artistic creations. While it is true that a patent and a copyright are both exclusive property rights and it is also true that they are both property rights in innovations, there is a crucial difference in their legal enforcement.

Copyright

If an author or a composer believes his copyright is being infringed, and he takes legal action, he must "prove that the defendant had 'access' to the work allegedly infringed. If the defendant produces something identical with the plaintiff's work by mere chance, there is no infringement." Copyrights, in other words, have their basis in prosecution of implicit theft. The plaintiff must prove that the defendant stole the former's creation by reproducing it and selling it himself in violation of his or someone else's contract with the original seller. But if the defendant independently arrives at the same creation, the plaintiff has no copyright privilege that could prevent the defendant from using and selling his product.

Patent

If someone patents an invention and reads in the newspaper one day that John Doe, who lives in a city 2,000 miles away, has invented an identical or similar device, that he has licensed the EZ company to manufacture it, then both John Doe and he EZ Company may all be guilty of infringing that patent. The fact that neither John Doe nor the EZ company have ever heard of that other invention and both believe John Doe to be the inventor of a new and original device is irrelevant. The fact that their infringement was in ignorance of the true facts and unintentional will not constitute a defense.

Patent, then, has nothing to do with implicit theft. It confers an exclusive privilege on the first inventor, and if anyone else should, quite independently, invent the same or similar machine or product, the latter would be debarred by violence from using it in production.

Other differences

Patents must be registered

A patent for an invention is granted by government to the inventor, giving the inventor the right for a limited period to stop others from making, using or selling the invention without the permission of the inventor. When a patent is granted, the invention becomes the property of the inventor, which - like any other form of property or business asset - can be bought, sold, rented or hired.

Patents are territorial rights; UK Patent will only give the holder rights within the United Kingdom and rights to stop others from importing the patented products into the United Kingdom. Similarly a US patent only has effect in the US.

The inventor must file an application for a patent before it can be granted, and the invention must fulfil the following conditions:

Copyright need not be registered

It is not necessary to register for copyright in any way. The mere fact that you create a work of authorship gives you automatic and immediate copyright. Copyright comes into effect as soon as something that can be protected is created and "fixed" in some way, eg on paper, on film, via sound recording, as an electronic record on the internet, etc. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

Some countries may require that a copyright work be marked with the copyright symbol © followed by your name and date, but this is not necessary in the UK. In the US it is possible to go through a formal procedure to register copyright.

Why is there controversy over Software Patents?

Although both UK and US law regard software as being subject to copyright and not patent, this has not stopped various corporations from applying for software patents. Even worse, the USPTO has taken upon itself to ignore the current law and actually issue software patents. The case is the same in Europe where the European Patent Office, without any legal basis, has already granted over 30,000 software patents.

The fact that software patents are not legally enforceable does not stop these corporations. They employ teams of expensive patent lawyers to threaten and cajole those who have allegedly violated their patents in order to extort vast amounts of money. One of the big problems is that a patent has effect only in the country in which it was issued, so a US patent cannot be enforced in the UK. Europe is made of many different countries, and each has its own patent laws, so a European patent is impossible without a separate patent for each European country.

When the European Union (EU) proposed to harmonise it's members individual patent laws into a single Europe-wide patent the pro-software patent lobby saw the opportunity not to harmonise but to change the law (in Europe at least) to suit their immoral purposes. They want to make software patents legal so that they can legally extort money from other software developers. If you want to follow the debate then I invite you to visit http://www.nosoftwarepatents.com.

Patents that should never have been granted

The really big problem with these patents is not that they were granted in the first place, but the fact that they bend the rules of what can be patented to suit their evil purposes. They want to patent the idea of an invention instead of the implementation of that invention. This is something which is expressly forbidden at present, both in Copyright law and Patent law, as shown by the following:

This is a very important point. It means that concepts cannot be protected, either by copyright or patent, only particular implementations of those concepts. This is why, for example, there are over 500 different patents for the humble mouse trap. How is this possible? Because each patent is for a different implementation of a mouse trap and not for the idea of a mouse trap. It is the same with many other inventions. It is possible to create a different patent for a similar invention provided that it has a different implementation, something which involves an inventive step.

The purpose of the proposed EU legislation is to harmonise the different patent laws which exist in the different European countries, as stated by EU Commissioner Frits Bolkestein in the EU Parliament debate of 23rd September 2003:

The proposal seeks to harmonise and to clarify; but nothing will become patentable which is not already patentable now.

Fine words, but the facts are totally different. This is not good enough for the big corporations and their fancy lawyers who want to change the law completely to allow them to legally extort money from virtually every software developer on the planet. If you don't believe me then take a look at these examples from www.nosoftwarepatents.com which show how a common internet solution falls foul of at least 20 European patents:

  1. Selling things over a network using a server, client and payment processor, or using a client and a server.
  2. Selling over a mobile phone network.
  3. Electronic shopping cart
  4. Tabbed palettes
  5. Preview window
  6. Video data distribution through the web
  7. Video streaming ("segmented video on-demand")
  8. Audio compression format
  9. Pay using credit card via the Internet
  10. Method and system for placing a purchase order via a communications network
  11. Automated loan application
  12. Digital signature in graphic to show that the shop is approved for receiving VISA payments
  13. Send offers in response to request
  14. Reroute incoming orders to a vendor
  15. Network support system using databases
  16. Use of TV as metaphor for selecting different video fragments
  17. JPEG format
  18. Show related results if customer likes the current ones
  19. Allow rebate codes to be entered by customers
  20. Material reproduction of information stored at remote location

If you study these patent applications very carefully you should notice the following significant changes in the current law that are required:

  1. They want software to be covered by patent where the current law quite categorically states that it can only be covered by copyright.
  2. They want patents to cover ideas and concepts where the current law quite categorically states that it can only cover particular implementations of those ideas or concepts.

In order to comply with the existing and well-established laws it is obvious that a software patent (should it be allowed to exist in the first place) should only be allowed to cover a particular piece of software that achieves the stated purpose and not all possible pieces of software which may achieve the same or similar results. So if someone writes a new piece of software, i.e. creates a totally new implementation of that idea or concept, then that does not infringe the patent of the original piece of software. It is only by reproducing the implementation covered by the patent without significant modification or an inventive step that a patent can be infringed. That is why there are 500 different patents for the mouse trap, because there are 500 different implementations. They all cover the same concept, that of catching mice, but they each have a different implementation.

It should then become obvious that the protection given by a software patent is no better than the protection given by the existing laws of copyright. The only difference between the two is that copyright comes into play without the intervention of lawyers, and there is no money in litigating over copyright. That is why so many lawyers are in favour of software patents, because they can see the fortunes that can be made in patent litigation. A plague on all their houses!

As far as I am concerned a piece of software is not an "invention" but an "original work of authorship", and is therefore covered adequately by the laws of copyright. After all, software is written just like a book or a play and not invented, therefore it cannot be called an invention. Software does not exist in material form therefore it cannot be called a machine or mechanical device. The person who writes a piece of software is known as the "author" and not the "inventor". A writer may be said to "invent" a new plot for a book, but that is just another way of saying that he came up an "idea" for his book. When that plot is committed to paper it still becomes an "original work of authorship" and not an "invention".

The effect of software patents will not be to give extra protection to software authors as they already have all the protection they need with copyrights. The real effect is that it will completely stifle innovation and improvement. There is a traditional saying which goes as follows:

Build a better mouse trap and the world will beat a path to your door.

If the pro-software patent lobby has their evil way this will change to:

Build a better mouse trap and the lawyers will beat a path to your door for violating the patent of the original mouse trap, the only mouse trap that is allowed to exist.

Don't say that you haven't been warned.

References

  1. Man, Economy and State, chapter 10 - Monopoly and Competition
  2. The UK Patent Office - What is Copyright?
  3. The UK Patent Office - What is a Patent?
  4. The US Copyright Office - What is Copyright? (PDF)
  5. The US Patent and Trademark Office - What is a Patent?

Other articles on this subject:


© Tony Marston
30th August 2006

http://www.tonymarston.net
http://www.radicore.org

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