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Why Patents Are Bad for Software

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Why Patents Are Bad for Software SOFI SIMSON L. GARFINKEL firm RICHARD M. STALLMAN mos MITCHELL KAPOR serve their case! sole l Lotu shee Why Patents Are Bad patei whic whei for Software since cept ticip, one Patents can't protect with or invigorate the pear! computer software ligen sheel "i% Septembeer 1990, users of the industry; they can longer be able to automatically cor- thep ,opular XyVVrite word processing only cripple it. rect common spelling errors by near] ........ 4-a M _ in Ai~~~~trhints otter ~~~~nroc~cin a th~ae not' e ht ft- tp program got a Ulstur1ll1 ltLLUtI Il F",aall~r, C11%,aF"`1 u"L 1 LL L%. gram . "~ T .1 " "-----" ·-- -'-·-L----- - the .tmail trom Xy1uest, Inc., me mlsspelle word. In audtion, to ex- is exi program's publisher: pand abbreviations stored in your so el personal dictionary, you will have prob] "In June of 1987, we introduced an automatic cor- to press control-R or another designated hot key." r rection and abbreviation expansion feature in XyWrite netw III Plus. Unbeknownst to us, a patent application for a XyQuest had been bitten by a software patent- on a related capability had been filed in 1984 and was sub- one of the more than two thousand patents on com- thou sequently granted in 1988. The company holding the puter algorithms and software techniques that have pater patent contacted us in late 1989 and apprised us of the been granted by the U.S. Patent and Trademark Office softm existence of their patent. since the mid- 1980s. The owner of the patent, Produc- comI We have decided to modify XyWrite III Plus so tivity Software, had given XyQuest a choice: license any c that it cannot be construed as infringing. The newest the patent or take a popular feature out of XyWrite, is de, version of XyWrite III Plus (3.56) incorporates two XyQuest's flagship product. If XyQuest refused, a I significant changes that address this issue: You will no costly patent-infringement lawsuit was sure to follow. appli Some choice. legal XyQuest tried to license the patent, says Jim Adel- com] son, vice president for marketing, but Productivity poter Software kept changing its terms. First Productivity Simson Garfinkel is a senior editor at NeXTWORLD magazine fecti) (San Francisco) and the coauthor of the book PracticalUNIX said that XyQuest could keep the feature in some ver- estab Security. Richard M. Stallman is one of the founders of the sions of XyWrite, but not in others. Then the company that v ~,J.,eague for Programming Freedom (Cambridge, Massachusetts) said that XyQuest could use one part of the "inven- d the recipient of the Association for Computing Machinery's tion," but not other parts. And Productivity Software ,race Hopper Award. Mitchell Kapor, a founder of the Lotus Wh. Development Corporation, is president of the Electronic Frontier kept increasing the amount of money it wanted. Xy- Softl Foundation (Cambridge, Massachusetts). Quest finally gave up and took the feature out. stead '50 ISSUES IN SCIENCE AND TECHNOLOGY FALL 1P .4w SOFTWARE PATENTS XyQuest was lucky it had that option. Other structions that tell a computer how to carry out a firms-including some of the nation's largest and specific task in a program. Thousands of instructions most profitable software publishers-have been make up any one computer program. But whereas the served with notice of patents that strike to the heart of unique combination of algorithms and techniques in a their corporate vitality. In one of the most publicized program is considered an "expression" (like a book or cases, a company called Refac International-whose a song) and is covered by copyright law, the algorithms sole business is acquiring and litigating patents-sued and techniques themselves are treated as procedures Lotus, Microsoft, Ashton-Tate, and three other spread- eligible for patenting. sheet publishers, claiming they had all infringed on The judicial basis for this eligibility is tenuous at patent number 4,398,249, which spells out the order in best. U.S. law does not allow inventors, no matter how which to recalculate the values in a complicated model brilliant they are, to patent the laws of nature, and in when one parameter in the model changes. (Refac has two Supreme Court cases (Gottschalkv. Benson, 1972, since dropped its claims against all the companies ex- and Parker v. Flook, 1978) the Court extended this cept Lotus, but only because company lawyers an- principle to computer algorithms and software techni- ticipated a better chance of success if they faced just ques. But in the 1981 case Diamond v.Diehr, the Court one opponent.) said that a patent could be granted for an industrial Patent 4,398,249 does not have anything to do process that was controlled by certain computer algo- with spreadsheets in particular; the technique also ap- rithms, and the Patent Office seems to have taken that pears in some graphics drawing and artificial intel- decision as a green light on the patentability of algo- ligence programs. And the idea that values in a spread- rithms and techniques in general. sheet should be recalculated in the order specified by Software patents are now being granted at an the patent is so obvious that it has probably occurred to alarming rate-by some counts, more than a thousand by nearly everyone who has written a spreadsheet pro- are issued each year. Unfortunately, most of the he gram. But the Patent Office's standard for obviousness patents have about as much cleverness and originality ,x- is extremely low; patents have been granted for ideas as a recipe for boiled rice-simple in itself but a vital }ur so elementary that they could have been answers to part of many sophisticated dishes. Many cover very yve problems in a first-year programming course. small and specific algorithms or techniques that are Practically once a month, the nation's computer used in a wide variety of programs. Frequently the "in- networks are abuzz with news of another patent issued ventions" mentioned in a patent application have been on a fundamental concept that is widely used. Al- independently formulated and are already in use by m- though the Patent Office isn't supposed to grant other programmers when the application is filed. ive patents on ideas, that's essentially what it's doing with When the Patent Office grants a patent on an algo- ice software patents, carving up the intellectual domain of rithm or technique, it is telling programmers that they 1C- computer science and handing little pieces to virtually may not use a particular method for solving a problem : --any --------- rnmnnnvI------ that------ files----·-------------- an adnlication. And the practice· without the permission of the idea's "owner." To them, ite,te, is devastating America's software industry. patenting an algorithm or technique is like patenting a 1,I, a If Congress does not act quickly to redefine the series of musical notes or a chord progression, then )w.M.. applicability of patent law to computer programs, the forcing composers to purchase a "musical sequence legal minefield confronting the introduction of new license." el-l- computer programs will be so intimidating-and ity potentially so costly-that small companies will ef- Systems at odds 'ity fectively be barred from the marketplace, while large, The traditional rationale for patents is that protection er- established firms will become embroiled in litigation of inventions will spur innovation and aid in the dis- my that will have a stultifying effect on the entire industry. semination of information about technical advances. an-m-- By prohibiting others from copying an invention, are What's being patented? patents allow inventors to recoup their investment in CY-Cy- Software patents do not cover entire programs; in- development while at the same time revealing the stead, they cover algorithms and techniques-the in- workings of the new invention to the public. .OGY FALL 1991 S1 so] But there's evidence that the - mon. In another case, the journal acc patent system is backfiring in the IEEE Computer in June 1984 pub- WI computer industry; indeed, the sys- The Pate,nt-OJficeis lished a highly efficient algorithm vel tem itself seems unsuited to the up the for performing data compression; ma nature of software development. unbeknownst to the journal's ed- prc Today's computer programs are so intellectlgal I domain itors or readers, the authors of the col complex that they contain literally ofcomph r science article had simultaneously applied cot thousands of algorithms and tech- tte science for apatent on their invention. In me niques, each considered patentable and hariding little the following year, numerous pro7 the hv the Patent Aff-'.r .£to'ltAr, T. one onyAn ~ li es , WyLL CUIU WUkI U13 it reasonable to expect a software t o any tributed for performing the so- ha) company to license each of those Compan *hatfiles called "LZW data compression." pas patents, or even to bring such a The compression system was even legallymarketlace? risky To product make things into eventhe an apl)litcation. adopted as a national standard and pri o mpa Dronosed as an international one. fins morecomputerlicat complicated, theed, thePatent Of- Then, in 1985, the Patent Office pat fice has also granted patentspatdevelopments on awarded patent number 4,558,302 anc combinations of algorithms and techniquestechn that to one of the authors of the article. Now Unisys, the 6or produce a particular feature. For example, Apple was holder of the patent, is demanding royalties for the use wa! suedsued because its Hypercard program allegedlyalleged violates of the algorithm. Although programs incorporating the nor patent number 4,736,308, which covers a specific algorithm are still in the public domain, using these exi ~cechniqueechnique that, insimplified simplified terms, terms, entailsentail scrolling programs means risking a lawsuit.
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