 |
|
| ||||||||||||||||||||||||||
|
|
| ||||||||||||||||||||||||||
|
|
|
|
|
| ||||||||
The expression software patent refers to a patent on software, and might be defined as a patent that has been, will be or could be granted on products or processes (including methods) which include or may include software as a significant or at least necessary part of their implementation, i.e., the form in which they are put in practice (or used) to produce the effect they intend to provide.
This is just one of many legal aspects of computing, and one of many aspects of intellectual property.
There is no universally accepted definition of the expression software patent and no legal text defines what exactly is a software patent and what it is not. What could be considered as a synonym put forward by the European Commission is "computer-implemented invention" (however this expression is rather narrower than the expression "software patents").
Software patents may however be classified in three categories: 1) patents on products or processes that may or may not include software in order to be implemented, 2) patents on products or processes that need software in order to be put into effect (along with some sort of hardware) and 3) patents that are nothing more than source code or algorithms.
These categories are arbitrary and have no legal direct value, but they may help to understand the issues at stake. Moreover, a same patent may contain several different claims, each of which belonging to a different category. So, it is actually and rigorously a classification of software patent claims rather than one of software patents, but it is quite equivalent as far as conferred protection from competition is concerned, since the claims are the most important part of a patent for determining the monopoly it confers to its owner.
The "first" type of software patents can be defined as the patents on products or processes that may or may not include software in order to be implemented.
For instance, a (fictional) patent with a claim such as "A high-pass filter comprising first means for converting an input analogue signal into a digital signal, second means for... and so on" refers to a product, e.g., a filter in this case, which may or may not include software. Indeed, the filter may be implemented using either electronic "first means for converting..." or software "first means" running on a hardware support.
The "second" type of software patents can be defined as patents on products or processes that need software in order to be put into effect (along with some sort of hardware).
For instance, a (fictional) patent with a claim such as "A high-pass filter comprising 1) a computer, 2) a program able to run on it and to convert an input analogue signal into a digital signal, 3)... " refers to a product, e.g., a filter, which needs a computer and a computer program (or a software) to be implemented.
The "third" category consists in patents that contain nothing more that source code or algorithm. In other words, it could be said that this category includes methods which describe a process which can be implemented without using "forces of nature", if it is understood that the intellect is not a force of nature.
For instance, a (still-fictional) patent with a claim such as "An algorithm which consists in taking a sequence of numbers as an input, applying to each of these numbers some kind of transformation, ..." falls within this category.
Software patents are treated differently under different jurisdictions.
In the 1950s, 1960s, and 1970s, the United States Patent and Trademark Office (PTO) did not grant a patent if the invention used a calculation made by a computer. The PTO's rationale was that patents could only be granted to processes, machines, articles of manufacture, and compositions of matter; patents could not be granted to scientific truths or mathematical expressions of it. Since the PTO viewed computer programs and inventions containing or relating to computer programs as mathematical algorithms, and not processes or machines, they were therefore not patentable. This view was upheld by the U.S. Supreme Court in Gottschalk v. Benson (1968) and Parker v. Flook (1975).
In the 1981 case of Diamond v. Diehr, the U.S. Supreme Court ordered the PTO to grant a patent on an invention, even though there was no invention claimed besides the use of a computer program (which used well-known formulas, this was also said before the U.S. Supreme Court by the patent attorney) for calculating the time when rubber was cured and the mold could be opened. The Supreme Court stated that in this case, the invention was not merely a mathematical algorithm (which it in fact was, exactly the industrial use of it), but was a process for molding rubber, and hence ordered the PTO to patent it.
After this point, more patents on software began to be granted, albeit with conflicting and confusing results. The Federal Circuit attempted to clarify the rules; requiring that the computer program must have a practical application. However, since all software is written to perform some useful activity, many believe this to be the exception that swallows the rule.
Meanwhile, the Clinton administration pushed software patenting from the administrative agency side, by appointing Bruce Lehman as Commissioner of the Patent and Trademark Office in 1994. Unlike his predecessors, Lehman was not a patent lawyer but the chief lobbyist for the Software Publishing Industry. In 1995, the PTO established some broad guidelines for examining and issuing software patents. The PTO interpreted the courts as requiring the PTO to grant software patents for an extremely broad variety of circumstances, including those that are essentially algorithms only distantly connected to physical processes. Note, that although the US Congress has never legislated specifically that software is patentable, the broad description of patentable subject in the Patent Act of 1952 and the failure of Congress to change the law after the court decisions allowing software patents, has been interpreted as Congressional acquiescence.
Another impetus for software patenting was the growing recognition that using the copyright law to protect non-literal infringement of computer programs (rather than just piracy) was getting out-of-control. When comparing patent protection to the use of non-literal copyright infringement, many commentators argued that many protections for competitors are built into the patent system that are lacking in the copyright laws. Specifically, these commentators pointed out copyrights are not examined, but patents must first be examined to determine if the program is both novel and non-obvious; the scope of patent rights is defined by the patent claims, while the scope of non-literal copyright infringement is unclear; and the patent term of 17 or 20 years is much shorter than the copyright terms. When courts began to permit software invention to be patentable, other courts also began restricting the use of copyright law to obtain patent-like protection of software.
Those who favor software patents believe that software are inventions to the same extent as hardware and that the law should not and, in practice is not able to, distinguish software inventions from hardware inventions. Proponents also argue that the patent system rewards inventors of innovative approaches in software, and thus promote innovation. This belief is important in the US, because this is the only permitted reason for a patent to be granted according to the US Constitution. More specifically, the Constitution only permits Congress "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Opponents charge that software patents are particularly favored by lawyers, who financially benefit from patent litigation, and by some (though not all) very large software companies, who hope to use patents to prevent competitors from using the patented technology.
The national jurisdictions relating to software patents in Europe and in the European Union are not harmonized (even though some harmonization has been brought into the national jurisdictions in the 1970s and 1980s). The EU Commission proposed a directive on the Patentability of Computer-Implemented Inventions, which was heavily amended in 2003 when reviewed at the EU Parliament. In response to this, the Commission proposed a compromise in May 2004, which opponents of software patents consider to be worse than the original proposal.
Main article: Software patents under the European Patent Convention
Almost all European countries are members of the European Patent Organisation but the European Patent Convention does not govern infringement and revocation proceedings before national Courts. As far as such actions are concerned, every European country may have, and indeed has, its own rules and case law.
The practice regarding software patent before the European Patent Office is however significant since the so-called "European patents" are examined and may be opposed according to the rules laid on the European Patent Convention.
Although it is widely misbelieved that software patents have been granted by the EPO only recently, thousands of software-related patents have been granted (rightly or wrongly) since the EPC entered into force. For instance from 1977 to 1994 only, about 11,000 software-related patents were granted by the EPO. Well-known article 52(2) has been interpreted by the EPO as only excluding methods for performing mental acts, mathematical methods and programs for computers as such. Products and processes including such subject-matter, that are expressed in terms of their technical features and that provide a technical effect, have not been considered to be excluded as such (see for instance decision of 1984).
Software patents are subject to a widespread controversy.
Opposition of software patents has come from many quarters. Many software developers oppose software patents in general, because patents can make it difficult to develop software of any kind (due to a "patent thicket"), inhibiting their livelihood. Compared to other industries, production and development of software products by an individual (e.g. "shareware") or a small group is very common.
Many opponents of software patents come from the free software community. Their principles are rather opposed to the underlying principles of the patent system. While the patent system is based on the assumption that a temporary monopoly is a way to encourage scientific and economic progress, their principle is that sharing is a better way to encourage scientific and economic progress.
Even outside the free software community, some opponents view the premise on which patent law is based — that invention is rare and that monopolies must be granted in order to encourage it — to be demonstrably false, with independent invention and reinvention being a common occurrence (particularly although not exclusively in the field of software).
Some corporations (such as Oracle) have protested against software patents, because they view patents as more likely to impede development of products than to help them in the long run. This view is not universally shared; many corporations do not want to share their applications as they feel they must in order to protect their R&D investments, and thus approve of software patents.
There is a widespread view among software developers that many software patents are granted only because patent offices and reviewers fail to rigorously apply the criteria for patentability, such as non-obviousness, and do not perform adequate searches for prior art. Some believe that the fees collected by patent offices give them a perverse incentive to be loose in enforcement of restrictions on patentability.
Liberal economists are inclined to oppose patent law in general.
Additional opposition to software patents can be traced back to more recent patents granted in the U.S. that appear absurd to many, even those who are not software development professionals. These include the "one-click shopping" patent granted to Amazon.com, and the State Street Bank decision of 1998, according to which "everything made under the sun by man can be patented."
Legalistic deduction perspective: TRIPS 27 provides that all fields of technology must be patentable. It is an open discussion whether software is regarded as part of technology (some pretend that when TRIPs was signed it was not). Often colloquial understanding is mixed up with legal language.
From the instrumental perspective: This question is a rhetoric trap that reverses the burden of proof. An application of patent law to a field has to be justified by economic evidence. Patent law is seen as an instrument of economic policy.
The following arguments are offered:
There are several reasons that contribute to the fear of small companies and individual developers that software patents are especially harmful to them.
In contrast to copyright, obtaining patents is relatively more expensive. Copyright is granted automatically when publishing a work. Through the Berne Convention and TRIPs the copyright is automatically extended to all countries that are part of those treaties. There are no costs involved. In order to obtain a patent, an inventor must file an application with a patent office and a fee must be paid. This patent is only valid within the jurisdiction of the patent office. In order to obtain a worldwide protection, an inventor must apply to every patent office in the local official language and pay a fee. Additionally there are sometime barriers that make it difficult to acquire a patent. Some countries require patent applicants be natural or legal persons within the jurisdiction.
Obviously this process it lengthy and expensive. Small businesses and individual developers usually do not have the monetary resources to pay for all the fees, translations, etc. to obtain a world-wide protection. They also would have to divert important human resources for this purpose.
This makes it far more difficult for small businesses and individual developers to obtain patents than for big corporations.
The ownership of a patent does not automatically prevent its infringement. The ownership of a patent just allows the owner to use the legal system to obtain a remedy for the patent infringement.
In order to do so, the patent owner must first know about the infringement. To obtain such knowledge is far easier for a multi-national corporation with the presence at the market where the infringement occurs than for small businesses or individual developers, which probably never know about such occurrence outside their realm of clients.
Secondly, in order to legally enforce a patent the patent owner must hire locally registered lawyers, and start proceedings in court. All of this is costly and distracts from the main business. Small businesses and individual developers are rarely able to spend the upfront costs and time necessary to followed up in this way without neglecting their business. Multi-national corporations, however, have legal departments for such tasks, and therefore have an advantage in pursuing patent infringements over small businesses and individual developers.
Already today the European Patent Office (EPO) has granted more than 30,000 software patents. It seems very difficult for a small business or individual developer to know all those patents to avoid using them, or to negotiate terms that would allow them to use the patented technology. Even big corporations might have problems investigating whether they are infringing patents. Working with mutual shared patent portfolios as described below does not necessarily help. In addition, the legal costs and damages that a small business or individual developer would have to pay for unintended and incidental infringement would probably cause bankruptcy in most cases. Large corporations often absorb such costs on an annual basis.
A defence against accusations of patent infringements is not a trivial task for a small business or individual developer. If this action has to be fought against a large corporation it is also a fight against the vast resources, lawyers, and experts that can easily overwhelm the resources of a small business or individual. Apart from being a distraction from the main business, small businesses and individual developers can suffer and even be destroyed by an action which they win because their clients are likely to be affected by the uncertainty of legal action and are likely to consider switching away from products or services that potentially use patented technology. What weighs heavily on the customers is that, if the legal action is successful and is not settled to protect them, they might be the next ones being accused of patent infringement.
The difficulty and cost of defence against allegations of breach of patent creates a competitive disadvantage for small business and the individual developer, since customers have to weigh the additional risks they take by selecting a small business or individual developer instead of a big corporation which will usually be able to settle such procedures in way that protects their clients. This is a solution which small businesses and individual developers cannot afford.
Large corporations are aware that building a large patent portfolio is of increasing importance. Not so much to generate licensing revenues from the patent portfolio, but to gain access to ideas owned by other corporations through a cross-licensing deal. If your corporation has a large portfolio of patents, and a corporation which operates in the same field as you attempts to threaten your corporation with one of their patents, there is a good chance that your corporation can return the threat, solving the issue in a cross licensing deal. This, in effect, creates an exclusive club of corporations able to exploit technology.
This effect occurs more in the field of software than in mechanical or pharmaceutical fields; a piece of software may contain hundreds or thousands of ideas which may be patented. In mechanical and drug fields it tends to be closer to one patent, one product. Many patents per product, coupled with the abstract and hard-to-search nature of software patents makes the cross-licensing protection system (described above) the dominant business method to deal with software patents.
Therefore, software patents tend to block the field of software development for small businesses and individuals. Given that small businesses and individuals count for some of the most revolutionary advances, one might argue that the US constitutional rationale for permitting the issuance of monopolies is being broken in the field of software.
This concentration of power, according to standard economic theory, will tend to increase the price of the product (computer software) whilst reducing competitive pressure for improvement.
The patentability of software especially has recently created a new line of business. New companies are formed with only one business goal, to obtain patents for the purpose of collecting license fees and damages in legal proceedings. These companies have no aim to produce any products or innovative technology. Moreover, if these companies were to innovate in the field of software, their own innovation may leave them open to threat. The only income these companies generate is by "participating" in the success of other companies. Such companies are a particular threat to small businesses and individual developers, because of their relative lack of legal expertise and resources. While the profit that could be made from big corporations is certainly bigger, the risks are also higher. Big corporations will more likely fight a long fight about patent issues. Therefore small businesses and individual developers are more likely initial targets to generate enough revenue and precedent to launch large, costly cases against big companies.
The value of employees to their employers is often primarily their experience. A very broad policy on patentability will lead to a situation in which most of the experience an employee gains, will be protected in some form by patents. This in turn means that the experience is not easily transferable from one company to another. Therefore the possible mobility of the employee decreases, as does their market value. This would make employees very strongly dependent on their employer, since only there can their experience be applied. Certainly not only patents, but all intellectual property rights play a role in this issue. In summation, however, patents can have the biggest impact, since they represent an exclusive monopoly to an idea. Trade secrets and copyright can be avoided while still using the obtained experience.
Very often, what is monopolized this way is not even a simple method but the pure idea that something could be done, whatever means are used.
Since such methods are very generic, the scope of such patents is often very wide and they are very hard to find using keyword searches and there is no classification for them, thus they are applied for in the language of some field. A computer does not even need to be mentioned in the patent, the description could even refer to traditional machines or electronic circuits; what counts is how the claims are written and if they do not describe new teachings of forces of nature, the patent can be described as software patent.
Since there is no standardized language enforced by the patent offices to describe pure ideas, patent search quality in this area is very low and this is not only a problem for the patent office's patent searches in the course of examination of the patent before granting it but also in private patent searches and litigation.
Though it sounds strange, some lawyers have recommended that parties are better off not examining or searching for software patents. It is said that knowledge of a patent that was later infringed can lead to being charged with "willful infringement", which means much more serious penalties. See (Article checked on August 1, 2004.) This advice serves to defeat the advantage (and a supposed justification for patents) that patents increase the public knowledge. Linus Torvalds has said that "no engineer should ever go looking for a patent." due to the willful infringement risk. (See ) (Article checked on August 26, 2004.)
Software patents are very controversial. For many decades, patent offices around the world rejected most applications for software patents. In Europe, the European Patent Convention states that "programs for computers (...) as such" are excluded from the patent system . The meaning of "as such" in this context was clear for decades, but recently the European Patent Office spontaneously (without change of the Convention or any political signal) changed its interpretation from "as long as the program is the claim itself" to "as the text of the program". This is strongly opposed by many European software companies, developers and users.
The exclusion of software from patentability did not suit the interests of many patent professionals and certain computer manufacturers (such as IBM), which already were used to getting patent protection for their hardware but continued to seek routes to exclusive rights over algorithms and general software which they started to sell independently of the hardware. Gradually, cases began to appear in various jurisdictions (such as the United States, Japan and Australia), holding that software could be patented in various ways. The European Patent Office (responsible for granting European patents, and separate from the European Union) decided that it could grant patents on software using a politically controversial interpretation of the European Patent Convention.
Had the story remained typical of the history of intellectual property laws, the alignment of intention between key corporations (especially IBM and Microsoft) and the patent offices of the US, Europe, and Japan, would soon have lead to mandatory software patents under international law.
At the present moment, however, armed with evidence suggesting that software patents are likely to be economically harmful, coalitions of interest groups including the free software and open source movement and software firms without large patent portfolios are attempting to reverse the trend of patent expansionism. This conflict has been played out over the EU Directive on the Patentability of Computer-Implemented Inventions.
There remain many opponents of software patents, including an overwhelming majority of professional software developers. For example, Burton Systems Software conducted a , and found that by a margin of 79.6% to 8.2% (10:1), computer programmers said that granting patents on computer software impedes, rather than promotes, software development (the remaining 12.2% were undecided). By 59.2% to 26.5% (2:1), most went even further, saying that software patents should be abolished outright.
Opponents of software patents argue against them for a diverse range of reasons. Here are some of the reasons opponents give for opposing software patents:
Professors James Bessen and Eric Maskin, two economists at the Massachusetts Institute of Technology (MIT), have demonstrated that introducing patenting into the software economy only has economic usefulness if a monopoly is the most useful form of software production. This is concerning, because few believe that a monopoly is truly the most useful (or desirable) form of software production. Bessen and Maskin also demonstrated a statistical correlation between the spread of patentability in the United States and a decline in innovation in software. In particular, between 1987 and 1994, software patents issuance rose 195%, yet company-funded R&D fell by 21% in real terms in these industries, while rising by 25% in industries in general.
(It should be noted that in general, the fact that two variables have both changed over time does not necessarily support a causal link between them; on the other hand, if the arguments by proponents of expanding patentability that this promotes innovation were correct, then we would expect the opposite correlation.)
"The licensing market, such as it is, seems to be defined characterized by patentees looking for infringers, rather than productive companies looking for technology." Brian Kahin
Software patents tend to be opposed by individual software developers, who view software patents as a risk to their livelihood and are a high risk to SMEs.: if enough patents are granted, they will not be able to sell their software. Some large software companies also oppose patents, fearing that they will be sued for implementing obvious techniques, resulting in continuous payments to avoid court costs or steep fees for court battles. Well-known opponents of software patents include Richard Stallman (author of the gcc compiler), Dan Bricklin (inventor of the spreadsheet), Donald Knuth (an expert on computer algorithms and the author of the TeX typesetting software), Hartmut Pilch of FFII, Alex Macfie (Taiwan), Eurolinux Alliance, Lawrence Lessig, Mitch Kapor, Michel Rocard (former Prime Minister of France), Adobe and Oracle.
Most software development companies in the US have decided to acquire software patents, even if they oppose the granting of them. Their motives include acquiring a patent before someone else does, or forcing competitors who acquire patents on obvious approaches to cross-license with them. Often these patents are only used defensively, e.g., they are only used against someone who first sues the company. Some organizations and licenses have formalized a nonaggression policy (a policy of never pursuing or profiting from aggressive software patent suits) and/or of mutual defense (in which a pool agree to this). Such systems, however, provide little defense to individual developers or small businesses, and it is unclear if they will prevail once companies come into financial hardship, needing patent revenues to persist. Often a patent can be worked around once the patent is known, but this can be a significant hardship if there is a significant amount of data in a format requiring the use of the patented algorithm.
A recent concern is the role of patents in the standards process. Some standards bodies have no patent policy; thus, it is possible for a member to convince a standards body to make certain technologies required by a standard while at the same trying to get a patent on that technology. As a result, many standards bodies (such as W3C) are now requiring their members to promise to grant either reasonable and non-discriminatory (RAND) or even royalty-free licenses on their patented technology that is incorporated into the standard.
See also: List of software patents
|
||||
| View Live Article | This article is from Wikipedia. All text is available under the terms of the GNU Free Documentation License | |
||
