Software Patents and how they harm us

Software Patents and how they harm us

Patents were first put into law in the 1400's in order to give exclusive rights to an invention. Patents were never meant to grant exclusive rights to an idea. Since the development of computers, beginning in the 1950's and 1960's, there has been much debate over the patentability of computer programs, or software. Software is inherently a collection of ideas expressed in a mathematical form. Software should therefore not be patentable. In the U.S., however, software patents are legally recognized and increasingly common. The effects of granting patents on software include reducing competitiveness, encouraging unproductive and expensive litigation, discouraging innovation, and increasing costs for consumers.

The fundamental distinction between copyrights and patents is one that directly relates to software patents specifically. The Copyright Act of 1976 gives the owner of a work the exclusive right to reproduce and distribute the said work. Patents, on the other hand, give the patent holder exclusive rights to the actual idea behind the work 1. In terms of software, a copyright would protect the author's ability to sell a specific program whereas a patent could protect the ideas and algorithms used to implement the program.

There is a long-established legal precedent in the United States that The United States Patent and Trademark Office, USPTO, will not grant patents on works such as literature, music, or art for the reason that they are nothing more than the embodiment of ideas. Why then, if software is a language of written ideas, should patents be allowed on software? Until the early 1980's, the USPTO, would not grant patents on software. This was done by reasoning that ideas including "scientific truths" and "mathematical expressions" are not patentable. In 1981, the Supreme Court ruled in Diamond vs. Diehr that mathematical ideas could not be patented themselves but the devices that used them could. With this legal breakthrough, the door was opened in the US for companies to seek patent protection for specific software applications, in effect providing patent protection for the mathematical ideas contained in the programming language. Since this case, it has only become easier to obtain patents on even trivial algorithms.

In comparison, in the European Union's Patent Convention "programs for computers" are explicitly prohibited from patentability 2. The European Parliament supported this clause when they rejected a proposed software patent directive on July 6th, 2005, thereby reiterating that ideas are not patentable 3.

Advocates for software patents claim that without patents, software would be unprotected. Further analysis does not support this conclusion. Once a patent is taken out, the owner has control of the idea for a period of 20 years during which time the owner can prevent anyone from using the idea 3. This goes far beyond protecting against software piracy. This protection is provided by copyright law. The World Trade Organization's TRIP Agreement makes any software automatically copyrighted by its owner 4. Conversely the effect of a software patent is to control the use of an idea and the spread of knowledge. This restriction has many harmful results in business and society.

Software patents reduce competitiveness. An internal memo from Bill Gates, Executive Chairman of Microsoft, supports this notion:

If people had understood how patents would be granted when most of today's ideas were invented and taken out patents, the industry would be at a complete standstill today. [...] The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors.

It is the strategy of large and well established companies to prevent entry into their markets, and software patents allow them to do just this. The effect of software patents is therefore to encourage the exercise of monopoly power by large software businesses. The result is higher prices and fewer choices for consumers.

Software patents encourage expensive and unproductive litigation. A large company can rid itself of competition from small firms by simply suing for patent infringement. Small firms do not have the resources or the in-house legal teams of the larger companies to combat patent litigation. The Washington Post ran an article that showed exactly how this can be done.

[...] a team of IBM patent lawyers went to Sun Microsystems Inc. in the 1980s and claimed that the then start-up was infringing on seven of its patents. After Sun engineers explained why they were not infringing, the IBM lawyers responded that with 10,000 patents, they would be sure to find some infringement somewhere.

Sun Microsystems eventually wrote IBM a check for an amount in the millions of dollars to avoid the expenses of going to court 5.

Software patents discourage innovation, although advocates for software patents claim that patents actually help the flow of ideas and innovation. Again, this simply isn't the case. Innovation is driven by competition, and with a lack of competition in a given market there will also be a lack of innovation. For instance, with the release of Windows XP, Microsoft's bundled web browser, Internet Explorer, had greater than 80% of the market 6. With no competition to force Microsoft to continue developing the browser the project fell stagnant. It wasn't until another browser, Mozilla, began to cut into Internet Explorer's overwhelming usage share that Microsoft restarted development. Since then, Microsoft has released a much improved Internet Explorer 7 7.

Software patents increase costs for consumers. As stated, software patents encourage large software firms to gain and exercise monopoly powers. Through the use of patents, Microsoft was able to monopolize the desktop market with its Windows operating system. With now all but complete control and no widespread alternatives, Microsoft is able to sell its Vista operating system for upwards of 200 dollars. This trend is common among all software groups. Adobe System's Photoshop CS can cost upwards of 700 dollars on If there were viable alternatives and competition for such products, undoubtedly the prices would be much lower.

Software patents are used for the benefit of a few while harming startups, small firms, and individual software developers. Christian Cornelssen of the Foundation for a Free Information Infrastructure put it simply when he said "The prevalent desire of software developers is to be protected from patents much more so than to be protected by patents" 3. With a smothering of competition, how will the innovation that has driven us into the age of technology continue?

I urge you, the reader, to contact your Senators and Representative, tell them that you do not support software patentability, and ask for their support on this issue.

Works Cited

  1. Copyright vs Trademark.
  2. Software Patents under the European Convention
  3. No Software Patents
  4. Software Patents
  5. Krim, Jonathan. "Patenting Air or Protecting Property?" Editorial. Washington Post 11 Dec. 2003, sec. E: 01.
  6. Browser Stastics
  7. History of Internet Explorer

23 March, 2007 - Matt Turner