Software patents — Obstacles to software development
by Richard Stallman
This is the transcription of a talk presented by Richard M. Stallman on
March 25, 2002, at the University of Cambridge
organized by the Foundation for Information
Policy Research. Transcript and
audio recording by Nicholas Hill. HTML editing and links by Markus
Kuhn. The original version is hosted at
You might have been familiar with my work on
This speech is not about that. This speech is about a way of
misusing laws to make software development a dangerous activity.
This is about what happens when patent law gets applied to the field
It is not about patenting software. That is a very bad way, a
misleading way to describe it, because it is not a matter of patenting
individual programs. If it were, it would make no difference, it
would be basically harmless. Instead, it is about patenting ideas.
Every patent covers some
Software patents are patents that cover software ideas, ideas
which you would use in developing software. That is what makes them a
dangerous obstacle to all software development.
You may have heard people using a misleading term
Property”. This term, as you can see, is biased. It makes
an assumption that whatever it is you are talking about, the way to
treat it is as a kind of property, which is one among many
alternatives. This term “Intellectual Property”
pre-judges the most basic question in whatever area you are dealing
with. This is not conducive to clear and open minded thinking.
There is an additional problem which has nothing to do with promoting
any one opinion. It gets in the way of understanding even the facts.
The term “intellectual property” is a catch-all. It lumps
together completely disparate areas of law such as copyrights and
patents, which are completely different. Every detail is different.
It also lumps together trademarks which are even more different, and
various other things more or less commonly encountered. None of them
has anything in common with any of the others. Their origins
historically are completely separate.
The laws were designed
independently. They covered different areas of life and activities.
The public policy issues they raise are completely unrelated. So, if
you try to think about them by lumping them together, you are
guaranteed to come to foolish conclusions. There is literally no
sensible intelligent opinion you can have about “Intellectual
Property”. If you want to think clearly, don't lump them
together. Think about copyrights and then think about patents. Learn
about copyright law and separately learn about patent law.
To give you some of the biggest differences between copyrights and
patents: Copyrights cover the details of expression of a work.
Copyrights don't cover any ideas. Patents only cover ideas and the
use of ideas. Copyrights happen automatically. Patents are issued by
a patent office in response to an application.
Patents cost a lot of money. They cost even more paying the lawyers
to write the application than they cost to actually apply. It takes
typically some years for the application to get considered, even
though patent offices do an extremely sloppy job of considering.
Copyrights last tremendously long. In some cases they can last as
long as 150 years, where patents last 20 years, which is long enough
that you can outlive them but still quite long by a timescale of a
field such as software.
Think back about 20 years ago when a PC was a new thing. Imagine
being constrained to develop software using only the ideas that were
known in 1982.
Copyrights cover copying. If you write a novel that turns out to be
word-for-word the same with Gone with the Wind and you
can prove you never saw Gone with the Wind, that would be
a defense to any accusation of copyright infringement.
A patent is an absolute monopoly on using an idea. Even if you could
prove you had the idea on your own, it would be entirely irrelevant if
the idea is patented by somebody else.
I hope you will forget about copyrights for the rest of this talk
because this talk is about patents and you should never lump together
copyrights and patents. It is about your understanding of these legal
issues. It is like what would happen in your understanding of
practical chemistry if you confused water and ethanol.
When you hear people describe the patent system, they usually describe
it from the point of view of somebody who is hoping to get a patent-
what it would be like for you to get a patent. What it would be like
for you to be walking down the street with a patent in your pocket so
that every so often you can pull it out and point it out at somebody
and say “Give Me Your Money!”. There is a reason for this
bias, which is that most of the people who will tell you about this
patent system have a stake in it, so they want you like it.
There is another reason—the patent system is a lot like a
lottery because only a tiny fraction of patents actually bring any
benefit to those who hold the patents. In fact,
The Economist’ once compared it to a time consuming lottery.
If you have seen ads for lotteries, they always invite you to think
about winning. They don't invite you to think about losing, even
though losing is far more likely. It is the same with ads for the
patent system. They always invite you to think about being the one
To balance this bias, I am going to describe the patent system from
the point of view of its victims. That is from the point of view of
somebody who wants to develop software but is forced to contend with a
system of software patents that might result in getting sued.
So, what is the first thing you are going to do after you have had an
idea of what kind of program you are going to write? The first thing
you might want to try to do to deal with the patent system is find out
what patents may cover the program you want to write. This is
impossible. The reason is that some of the patent applications that
are pending are secret. After a certain amount of time they may get
published, like 18 months. But that is plenty of time for you to
write a program and even release it not knowing that there is going to
be a patent and you are going to get sued.
This is not just academic.
In 1984, the compress program was written, a program for data
compression. At the time, there was no patent on the LZW compression
algorithm which it used. Then in 1985, the US issued a patent on this
algorithm and over the next few years, those who distributed the
compress program started getting threats. There was no way that the
author of compress could have realized that he was likely to get sued.
All he did was use an idea that he found in a journal just like
programmers have always done. He hadn't realized that you could no
longer safely use ideas that you found in a journal.
Let's forget about that problem… The issued patents are
published by the patent office so you can find the whole long list of
them and see exactly what they say. Of course, you couldn't actually
read that whole list as there are too many of them. In the US, there
are hundreds of thousands of software patents.
There is no way you can keep track of what they are all about. You
would have to try to search for relevant ones. Some people say that
should be easy in these modern days of computers. You could search
for key words and so-on. That one works to a certain extent. You
will find some patents in the area. You won't necessarily find them
all however. For instance, there was a software patent which may have
expired by now on natural order recalculation in spread sheets.
means basically that when you make certain cells depend upon other
cells, it always recalculates everything after the things it depends
on, so that after one re-calculation, everything is up to date. The
first spread sheets did their recalculation top-down, so if you made a
cell depend on a cell lower down, and you had a few such steps, you
had to recalculate several times to get the new values to propagate
upwards. You were supposed to have things depend upon cells above
Then someone realized why don't I do the recalculation so that
everything gets recalculated after the things it depends upon? This
algorithm is known as topological sorting. The first reference to it
I could find was in 1963. The patent covered several dozen different
ways you could implement topological sorting but you wouldn't have
found this patent by searching for spreadsheet. You couldn't have
found it by searching for natural order or topological sort. It
didn't have any of those terms in it. In fact, it was described as a
method of compiling formulas into object code. When I first saw it, I
thought it was the wrong patent.
Let's suppose that you got a list of patents. So you want to see know
what you are not allowed to do. When you try studying these patents,
you will discover they are very hard to understand as they are written
in tortuous legal language, whose meaning is very hard to understand.
The things patent offices say often don't mean what they seem to mean.
There was an Australian government study of the patent system in the
1980's. It concluded that aside from international pressure, there
was no reason to have a patent system. It did no good for the public
and recommended abolishing it if not for international pressure. One
of the things they cited was that engineers don't try reading patents
to learn anything, as it is too hard to understand them. They quoted
one engineer saying “I can't recognize my own inventions in
This is not just theoretical. Around 1990, a programmer named
Heckel sued Apple claiming that Hypercard infringed a couple of
When he first saw Hypercard, he didn't think it had anything to do
with his patent, with his “Inventions”. It didn't look
similar. When his lawyer told him that you could read the patents as
covering part of Hypercard, he decided to attack Apple.
When I had a
speech about this at Stanford, he was in the audience, he said “That's
not true, I just didn't understand the extent of my
protection!” I said yes, that's what I said! So, in fact, you
will have to spend a lot of time talking with lawyers to figure out
what these patents prohibit you from doing.
Ultimately they are going
to say something like this: “If you do something in here, you
are sure to lose, If you do something here, there is a substantial
chance of losing, and if you really want to be safe, stay out of this
area. And, by the way, there is a sizable element of chance in the
outcome of any law suit”.
Now, that you have a predictable terrain for doing business(!) what
are you going to do? Well, there are three approaches that you might
try. Any of which is applicable in some cases.
- Avoiding the patent
- Licensing the patent
- Overturning the patent in court.
Let me describe these three approaches and what makes them workable or
1) Avoiding the patent
That means don't use the idea that the patent covers. This can be
easy or hard, depending on what that idea is. In some cases, a
feature is patented. Then you avoid the patent by not implementing
that feature. Then it just matters how important is that feature. In
some cases, you can live without it. A while ago, the users of the
word processor XyWrite got a downgrade in the mail. The downgrade
removed a feature which allowed you to pre-define abbreviations. That
when you typed an abbreviation followed by a punctuation character, it
would immediately replace itself with by some expansion.
So that way
you could define the abbreviation for some long phrase, type the
abbreviation then the long phrase will be in your document. They
wrote to me about this because they knew
the Emacs editor has a similar feature.
In fact, it had it since the 70's. This was interesting because it
showed me that I had at least one patentable idea in my life. I knew
it was patentable because somebody else patented it afterward!
Actually, they had tried these various approaches.
First they tried
negotiating with the patent holder, who turned out not to negotiate in
good faith. Then they looked at whether they could have a chance of
overturning the patent. What they decided to do was take out the
feature. You can live without this feature. If the word processor
lacks only this feature, maybe people will still use it. But as
various features start getting hit, eventually you end up with a
program people think is not very good and they are likely to reject
it. That is a rather narrow patent on a very specific feature.
What do you do with the
Telecom patent on traversing hyper links together with dial-up
access? Traversing hyper links is absolutely essential to a major use
of computers these days. Dial-up access is also essential. How do
you do without this feature, which, by the way, isn't even one
feature, it is really a combination of two just arbitrarily
juxtaposed. It is rather like having a patent on a sofa and
television in the same room.
Sometimes the idea that's patented will be so broad and basic that it
basically rules out an entire field. For instance, the idea of Public
Key Encryption which was patented in the US. The patent expired in
1997. Until then, it largely blocked the use of Public Key Encryption
in the US. A number of programs that people started to develop got
crushed. They were never really available because the patent holders
Then, one program got away. The
program PGP, which initially was
released as free software. Apparently, the patent holders by the time
they got around to attacking, realized they might get too much bad
publicity. So they imposed restrictions making it for non-commercial
use only, which meant it couldn't catch on too much. So they greatly
limited the use of Public Key Encryption for a decade or more. There
was no way around that patent. There was nothing else you could do
Sometimes a specific algorithm gets patented. For instance, there is
a patent on an optimized version of the Fast Fourier Transform. It
runs about twice as fast. You can avoid that by using the ordinary
FFT in your program. That part of your program will take twice as
long. Maybe that doesn't really matter, maybe that is a small part of
the program's running time. Maybe if it is twice as slow, you won't
really notice. Or maybe that means your program won't run at all
because it will take twice real time to do its job. The effects vary.
In some cases, you can find a better algorithm. This may or may not
do you any good. Because we couldn't use compress, in the GNU project
we started looking for some other algorithm for data compression.
Somebody wrote to us saying he had one. He had written a program and
he decided to contribute it to us. We were going to release it. Just
by chance, I happened to see a copy of the New York Times. It
happened to have the weekly patent column in it. I didn't see a copy
of the Times more than once every few months. So I looked at it and
it said that somebody had got a patent for “Inventing a new
method of compressing data”.
I figured I better take a look at
this patent. I got a copy and it turned out to cover the program that
we were just a week away from releasing. That program died before it
was born. Later on we did find another algorithm which was
un-patented. That became the program
gzip, which is now effectively the de-facto standard for data
compression. As an algorithm to use in a program for data
compression, it was fine. Anyone who wanted to do data compression
could use gzip instead of compress. But the same patented LZW
compression algorithm was also used in image formats such as
the GIF format.
But there because
the job people wanted to do was not to simply compress data but to
make an image that people could display with their software, it turned
out extremely hard to switch over to a different algorithm. We have
not been able to do it in 10 years! Yes, people use the gzip
algorithm to define another
image format, once people started getting threatened with law
suits for using GIF files. When we started saying to people stop
using GIF files, switch over to this, people said “We can't
switch. The browsers don't support the new format yet”. The
browser developers said “We're not in a hurry about this. After
all, nobody is using this file format”.
In effect, society had so much inertia in the use of the GIF format,
we have not been able to get people to switch. Essentially, the
community's use of the GIF format is still pushing sites into using
GIF format with the result that they are vulnerable to these threats.
In fact, the situation is even more bizarre. There are in fact two
patents covering the LZW compression algorithm. The patent office
couldn't even tell that they were issuing two patents on the same
thing. They couldn't keep track. There is a reason for this. It
takes a while of study of these two patents to see that they really
cover the same thing.
If they were patents on some chemical process, it would be much
easier. You could see what substances were being used, what the
inputs were, what the outputs were, which physical actions are being
taken. No matter how they are described, you'd see what they were and
then you would see that they are similar.
If something is purely mathematical, there are many ways of describing
it, which are a lot more different. They are not superficially
similar. You have to really understand them to see they are talking
about the same thing. The patent office doesn't have time. The US
Patent Office as of a few years ago, was spending on average 17 hours
per patent. This is not long enough to think carefully about them,
so, of course they make mistakes like that. In fact, I told you about
the program that died before it was born. That algorithm also had two
patents issued for it in the US. Apparently, it is not that unusual.
Avoiding the patents may be easy, may be impossible. It may be easy
but it makes your program useless. It varies depending on the
Here is another point I should mention: Sometimes a company or
consortium can make a format or protocol the de-facto standard. Then,
if that format or protocol is patented, that is a real disaster for
you. There are even official standards that are restricted by
patents. There was a big political uproar last September when the
World Wide Web
Consortium was proposing to start adopting standards that were
covered by patents. The community objected so they reversed
They went back to insisting that any patents had to be
freely implementable by anyone and that the standards had to be free
for anyone to implement. That is an interesting victory. I think
that was the first time any standards body has made that decision. It
is normal for standards bodies to be willing to put something in a
standard which is restricted by patents and people are not allowed to
go ahead and implement it freely. We need to go to other standards
bodies and call on them to change their rules.
2) Licensing the patent
The second possibility instead of avoiding the patent is to get a
license for the patent. This is not necessarily an option. The
patent holder does not have to offer you a license, it is not
required. 10 Years ago, the league for programming freedom got a
letter asking for help from somebody whose family business was making
gambling machinery for casinos and they used computers back then. He
received a threat from another company that said we have the patents.
You are not allowed to make these things. Shut down.
I looked at that patent. It covered having a number of computers on a
network for playing games such that each computer supported more than
one game and allowed you to play more than one game at a time.
You will find patent office really think that there is something
brilliant about doing more than one of anything. They don't realize
that in computer science, that's the most obvious way to generalize
anything. You did it once and now you can do it any number of times,
you can make a subroutine. They think that if you do anything more
than once, that somehow means you are brilliant and that nobody can
possibly argue with you and that you have the right to boss them
around. Anyway, he was not offered a license. He had to shut down.
He couldn't even afford really to go to court. I would say that
particular patent was an obvious idea. It is possible that a judge
might have agreed, but we will never know because he could not afford
to go to court.
However, a lot of patent holders do offer licenses. They often charge
a lot of money for that though. The company licensing the natural
order recalculation patent was demanding 5% of the gross sales of
every spreadsheet in the US. I am told that was the cheap pre-lawsuit
price. If you actually made them sue you and they won, they'd demand
more. You might be able to afford that 5% for licensing this one
patent, but what if you need to license 20 different patents to make
the program? Then all the money you take in goes on patents. What if
you need to license 21 patents?
People in business told me that practically speaking, 2 or 3 of them
would make any business unfeasible.
There is a situation where licensing patents is a very good solution.
That is if you are a multinational mega-corporation. Because these
companies own a lot of patents, and they cross-license with each
other. That way, they escape most of the harm that the patent system
does and they only get the good. IBM published an
article in Think magazine. I believe it was issue No. 5 of 1990
on IBM's patent portfolio, which said that IBM got two kinds of
benefit from its 9000 US patents. I believe the number is larger
today. These were first, collecting royalties and second, getting
access to the patents of others. They said that the latter benefit is
an order of magnitude greater. So the benefit that IBM got from being
allowed to use the ideas that were patented by others was 10 times the
direct benefit IBM could get from licensing patents. What does this
What is the benefit that IBM gets from this access to the patents of
others? It is basically the benefit of being excused from the trouble
that the patent system can cause you. The patent system is like a
lottery. What happens with any given patent could be nothing, could
be a windfall for some patent holder or a disaster for everyone else.
But IBM being so big, for them, it averages out. They get to measure
the average harm and good of the patent system.
For them, the trouble
of the patent system would have been 10 times the good. I say would
have been because IBM through cross-licensing avoids experiencing that
trouble. That trouble is only potential. It doesn't really happen to
them. But when they measure the benefits of avoiding that trouble,
they estimate it as 10 times the value of the money they collect from
This phenomenon of cross-licensing refutes a common myth, the myth of
the starving genius. The myth that patents “protect” the
“small inventor”. Those terms are propaganda terms. You
shouldn't use them. The scenario is like this: Suppose there is a
brilliant designer of whatever of whatever. Suppose he has spent
years starving in the attic designing a new wonderful kind of whatever
and now wants to manufacture it and isn't it a shame the big companies
are going to go into competition with him, take away all the business
and he'll “starve”.
I will have to point out that people
in high tech fields are not generally working on their own and that
ideas don't come in a vacuum, they are based on ideas of others and
these people have pretty good chances of getting a job if they need to
these days. So this scenario, the idea that a brilliant idea came
from this brilliant person working alone is unrealistic and the idea
that he is in danger of starving is unrealistic. But it is
conceivable that somebody could have an idea and this idea along with
100 or 200 other ideas can be the basis of making some kind of product
and that big companies might want to compete with him.
So let's see
what happens if he tries to use a patent to stop them. He says
“Oh No, IBM. You cannot compete with me. I've got this patent.
IBM says let's see. Let's look at your product. Hmmm. I've got this
patent and this one and this one and this one and this one and this
one, which parts of your product infringe. If you think you can fight
against all of them in court, I will just go back and find some more.
So, why don't you cross license with me?” And then this
brilliant small inventor says “Well, OK, I'll cross
license”. So he can go back and make these wonderful whatever
it is, but so can IBM. IBM gets access to his patent and gets the
right to compete with him, which means that this patent didn't
“protect” him at all. The patent system doesn't really do
The mega-corporations avoid, for the most part, the harm of the patent
system. They see mainly the good side. That is why they want to have
software patents. They are the ones who will benefit from it. But if
you are a small inventor or work for a small company, the small
company is not going to be able to do this. They try. The problem is
that they cannot get enough patents to do this. Any given patent is
pointing in a certain direction. So if a small company has patents
pointing there, there and there and somebody over there points a
patent at them and says give me your money, they are helpless.
can do it because with these 9000 patents, they are pointing
everywhere, no matter where you are, there is probably an IBM patent
pointing at you. So IBM can almost always make you cross license.
Small companies can only occasionally make someone cross-license.
They will say they want patents for defensive purposes but they won't
get enough to be able to defend themselves.
There are cases where even IBM cannot make someone cross-license.
That is when there is a company whose sole business is taking a patent
and squeezing money out of people. The company that had the natural
order recalculation patent was exactly such a company. Their sole
business was to threaten to sue people and collect money from people
who were really developing something.
There are no patents on legal procedures. I guess the lawyers
understand what a pain it would be to have to deal with the patent
system themselves. The result is that there is no way to get a patent
to make that company cross license with you. So they go around
squeezing everyone. But I guess companies like IBM figure that is
part of the price of doing business so they can live with it.
So that is the possibility of licensing a patent which may or may not
be possible and you may or may not be able to afford it.
3) Overturning a patent in court
Supposedly, in order to be patented, something has to be new, useful
and unobvious. That is the language used in the US. I think other
countries have different language which is pretty much equivalent to
it. Of course, when the patent office gets into the game, they start
interpreting new and unobvious. New turns out to mean we don't have
it in our files and unobvious tends to mean unobvious to someone with
an IQ of 50.
Somebody who studies most of the software patents issued in the US, or
at least he used to, I don't know if he can still keep up with them,
said that 90% of them wouldn't pass the crystal city test, which meant
if the people in the patent office went outside to the news stand and
got some computer magazines, they would see that these ideas are
The patent office does things that are so obviously foolish, you
wouldn't even have to know the state of the art to see they are
foolish. This is not limited to software. I once saw the famous
Harvard mouse patent which was obtained after Harvard genetically
engineered a strain of mouse with a cancer causing gene. The cancer
causing gene was already known and was inserted using known techniques
into an already existing strain of mouse. The patent they got covered
inserting any cancer causing gene into any kind of mammal using any
method whatsoever. You don't have to know anything about genetic
engineering to realize that is ridiculous.
I am told that this over claiming is normal practice and that the US
Patent Office sometimes invited patent applicants to make their claims
broader. Basically make the claims broader until you think they are
running into something else that's unambiguous prior art. See how
much land grab in mental space you can get away with.
When programmers look at a lot of software patents, they say this
is ridiculously obvious!
Patent bureaucrats have all sorts of excuses to
justify ignoring what programmers think. They say “Oh! But you
have to consider it in terms of the way things were 10 or 20 years
ago”. Then they discovered that if they talk something to death
then you can eventually lose your bearings. Anything can look
unobvious if you tear it apart enough, analyze it enough. You simply
lose all standard of obviousness or at least lose the ability to
justify any standard of obvious or unobvious. Then, of course, they
describe the patent holders as brilliant inventors, all of them.
Therefore we can't question their entitlement to power over what we
If you go to court, the judges are likely to be a little more
stringent about the idea of what is obvious or not. But the problem
is that it costs millions of dollars to do that. I heard of one
patent case, the defendant I remember was Qualcomm, and I believe the
ruling was ultimately 13 million dollars of which most went to pay the
lawyers on both sides. There were a few million dollars left over for
the plaintiff, because they lost.
To a large extent, the question of the validity of a patent will
depend on historical accidents. Lots of historical accidents such as
precisely what was published when and which of those things somebody
manages to find. Which of them didn't get lost, precise dates and
so-on. Many historical accidents determine whether a patent is valid.
In fact, it is a weird thing that the
Telecom following hyper links together with telephone access
patent, I think, was applied for in 1975. I think it was in 1974
that I developed the info package for the first time. The info
package allows you to traverse hyper links and people did use
telephones to dial up and access the system. So in fact, I produced a
piece of prior art for that patent. So that is the second patentable
idea I have had in my life, but I don't think I have any proof of
that. I didn't think this was interesting enough to publish it.
After all, the idea of following hyper links I got from the demo of
Engelbart's editor. He is the one who had an idea which was
interesting to publish.
What I done I called poor mans hypertext as I
had to implement it in the context of TECO. It was not as powerful as
his hypertext but it was at least useful for browsing documentation,
which it all it was meant for, and as for there being dial-up access
to the system, well, there was, but it didn't occur to me that the one
had anything particular to do with the other. I wasn't going to
publish a paper saying “Oh! I implemented this poor man's
hypertext, and guess what! There are dial-up lines on the computer
too!” I suspect there is no way to tell precisely on what dates
I implemented this. And was it published in any sense? Well, we
invited guests to come in across the ARPAnet, and log in on our
machine, so they could have browsed documentation using info and seen
the thing. If they had asked us, they would have found we have
dial-up access. But as you can see, historical accident determines
whether you have prior art.
Now of course, there is a publication made by Engelbart about
hypertext, which they are going to show. I don't think it says
anything about having dial-ups on the computer however, so whether it
will suffice is not clear. So, this is an option, the possibility of
going to court to overturn the patent.
Because of the expense, it is often out of the question even if you
can find solid prior art that ought to be sufficient to overturn the
patent. As a result, an invalid patent, a patent that nominally
shouldn't have existed (but in fact lots and lots of them do) is a
dangerous weapon. If somebody attacks you with an invalid patent,
that can really cause a lot of trouble for you. You might be able to
bluff them away by showing them the prior art. It depends upon
whether they can get scared off that way or they might think
“well, you are just bluffing, we figure you can't really go to
court, you can't afford it so we'll sue you anyway”.
All of these three possibilities are things that sometimes you can
manage to use, but often you can't. So you have to face patent after
patent after patent. Each time you may be able to find one of these
three possibilities you can use, then there is another patent then
another and another. It gets like crossing a minefield. Each step
you take, each design decision, probably won't step on a patent, so
you can take a few steps and probably there won't be an explosion.
But the chance you will get all the way through the minefield and get
to develop the program you want to develop without ever stepping on a
patent gets less and less as the program gets bigger.
Now, people used to say to me, “Well, there are patents in other
fields, why should software be exempt?”. Note the bizarre
assumption in there that somehow we are all supposed to suffer through
the patent system. It is like saying “Some people get cancer.
Why should you be exempt?” As I see it, each person who doesn't
get cancer is good. But there is, behind that, a less biased
question, which is a good question which is: Is software different
from other fields? Should patent policy be different in different
fields? If so, why?
Let me address that question: patents relate to different fields
differently because in various fields patents relate to products
On one extreme we have pharmaceuticals where a given chemical formula
would be patented, so that patent covers one and only one product.
Some other product wouldn't be covered by the existing patent. If
there is to be a patent for this new product, the patent holder would
be whoever developed the new product.
That fits in with the naive idea of the patent system that we have,
that if you are designing a new product, you are going to get
“The Patent”. The idea that there is one patent per
product and that it covers the idea of that product. In some fields
it is closer to being true. In other fields it is further from being
true. This is because software packages are usually very big. They
use many different ideas in a new combination. If the program is new
and not just copied, then it is probably using a different combination
of ideas combined, of course, with newly written code, because you
can't just magically say the names of these ideas and have them work.
You have to implement them all.
You have to implement them all in
that combination. The result is that even when you write a program,
you are using lots of different ideas, any one of them might be
patented by somebody. A pair of them may be patented as a combination
by somebody. There might be several different ways of describing one
idea which might be patented by various different people. So there
are possibly thousands of things, thousands of points of vulnerability
in your program, which might be patented by somebody else already.
This is why software patents tend to obstruct the progress of
software—the work of software development.
If it were one patent-one product, then these patents wouldn't obstruct the
development of products because if you developed a new product, it
wouldn't be patented by somebody else already. But when one product
corresponds to many different ideas combined, it becomes very likely
your new product is going to be patented by somebody else already. In
fact, there is economic research now showing just how imposing a
patent system on a field where there is incremental innovation, can
You see, the advocates of software patents say
“well yes, there may be problems but more important than any
problems, the patents must promote innovation and that is so important
it doesn't matter what problems you cause”. Of course, they
don't say that out loud because it is ridiculous but implicitly they
want you to believe that as long as it promotes progress, that
outweighs any possible cost. But actually, there is no reason to
believe it does promote progress. We now have a model showing
precisely how patents can retard progress. The case where that model
can fit describes the software field pretty well; Incremental
Why is software on that extreme of the spectrum? The reason is that
in software we are developing idealized mathematical objects. You can
build a complicated castle and have it rest on a thin line and it will
stay up because it doesn't weigh anything. In other fields, people
have to cope with the perversity of matter—of physical objects.
Matter does what it is going to do. You can try to model it and if
the actual behavior doesn't fit the model then tough on you, because
the challenge is to make physical objects that really work.
If I wanted to put an ‘If’ statement in a
‘While’ statement, I don't have to worry about whether the
‘If’ statement will oscillate at a certain frequency and
rub against the ‘While’ statement and eventually they will
fracture. I don't have to worry whether it will oscillate at a
certain higher frequency and induce a signal in the value of some
other variable. I don't have to worry about how much current that
‘If’ statement will draw and whether it can dissipate the
heat there inside that while statement. Whether there will be a
voltage drop across the while statement that will make the
‘If’ statement not function.
I don't have to worry that
if i run this program in a salt water environment that the salt water
may get in between the ‘If’ statement and the
‘While’ statement and cause corrosion. I don't have to
worry when I refer to the value of a variable whether I am exceeding
the fan-out limit by referring to it 20 times. I don't have to worry,
when I refer to the variable, how much capacitance it has and whether
there has been sufficient time to charge up the value. I don't have
to worry when I write the program, about how I am going to physically
assemble each copy and whether I can manage to get access to put that
‘If’ statement inside the ‘While’ statement.
I don't have to worry about how I am going to gain access in case that
‘If’ statement breaks, to remove it and replace it with a
So many problems that we don't have to worry about in
software. That makes it fundamentally easier. It is fundamentally
easier to write a program than to design a physical object that's
going to work. This may seem strange because you have probably heard
people talking about how hard software is to design and how this is a
big problem and how we are going to solve it. They are not really
talking about the same question as I am. I am comparing physical and
software systems of the same complexity, the same number of parts. I
am saying the software system is much easier to design than the
physical system. But the intelligence of people in these various
fields is the same, so what do we do when we are confronted with an
easy field? We just push it further! We push our abilities to the
If systems of the same size are easy, let's make systems which
are ten times as big, then it will be hard! That's what we do! We
make software systems which are far bigger in terms of number of parts
than physical systems. A physical system whose design has a million
different pieces in it is a mega project. A computer program whose
design has a million pieces in it, is maybe 300,000 lines, a few
people will write that in a couple of years. That is not a
particularly giant program. GNU Emacs now has several million pieces
in its design I think. It has a million lines of code. This is a
project done with essentially no funding whatsoever. Mostly done by
people in their spare time.
There is another big saving. If you have designed a physical product,
the next thing you have to do is design the factory to make it. To
build this factory may cost millions or tens of millions whereas to
make copies of the program, you just have to type ‘copy’.
The same copy command will copy any program. You want copies on CD
then fine. You burn a master CD and send it off to a CD plant. They
will use the same equipment which will copy any contents on a CD. You
don't have to build a factory to make this product. There is
tremendous simplification and tremendous reduction in costs of
The result is, say for an automobile company, who
will spend 50 million dollars to build a factory, to build a new model
of auto, they can hire some lawyers to cope with patent license
negotiations. They can even cope with a law suit if they wanted to.
To design a program of the same complexity may cost 50 thousand or 100
thousand dollars. By comparison, the cost of dealing with the patent
system is crushing. Or actually designing a program with the same
complexity as the mechanical design of an auto is probably a month's
work. How many parts does an auto have… that is if it is an
auto which doesn't have computers in it. There
are not that many parts. That is not to say designing a good one is
easy but just that there are not that many different things in it.
The result is software really is different from other fields because
we are working with mathematical stuff designing something is far, far
easier and the result is that we regularly make systems which are
much, much larger and do so with just a few people. The result is
that the patent system then instead of being close to one product, one
patent, we are in a system where one product involves many, many ideas
which could be patented already.
The best way to explain it by analogy is with symphonies. A symphony
is also long and has many notes in it, and probably uses many musical
ideas. Imagine if the governments of Europe in the 1700's had decided
they wanted to promote the progress of symphonic music by establishing
a European Musical Patent Office that would give patents for any kind
of musical ideas which you could state in words. Then imagine it is
around 1800 and you are Beethoven and you want to write a symphony.
You will find that getting your symphony so that it doesn't infringe
any patents is going to be harder than writing a good symphony.
you complain about this, the patent holders would say “Ah
Beethoven, you are just bitching because you have no ideas of your
own. All you want to do is rip off our inventions”. Beethoven,
as it happens, had a lot of new musical ideas but he had to use a lot
of existing musical ideas in order to make recognizable music. In
order to make music that listeners could possibly like, that they
could recognize as music. Nobody is so brilliant that he can
re-invent music and make something that people would want to listen
Boulez said he would try to do that, but who listens to Pierre
Nobody is so brilliant he can re-invent all of computer
science, completely new. If he did, he would make something that the
users would find so strange that they wouldn't want to use it. If you
look at a word processor today, you would find, I think, hundreds of
different features. If you develop a nice new innovative word
processor, that means there are some new ideas in it, but there must
be hundreds of old ideas in it. If you are not allowed to use them,
you cannot make an innovative word processor.
Because the work of software development is so big, the result is that
we don't need any artificial scheme to incentivize new ideas. You
just have people writing software and they will have some new ideas.
If you want to write a program and you want to make it good, so some
ideas will come to you and some you will see a way to use. What used
to happen, because I was in the software field before there were
software patents, was most of the developers would publish any new
ideas that they thought were noteworthy, that they thought that they
might get any credit or respect for.
The ideas that were too small or
not impressive enough, they would not publish because that would be
silly. Now the patent system is supposed to encourage disclosure of
ideas. In fact, in the old days, nobody kept the ideas secret. They
kept the code secret, it's true. The code, after all, represented the
bulk of the work. They would keep the code secret and publish the
ideas so that way the employees would get some credit and feel good.
After software patents, they still kept the code secret and they
patented the ideas, so in fact, disclosure has not been encouraged in
any meaningful sense. The same things are kept secret now as what were kept secret before,
but the ideas which used to be published so that we could use them are
now likely to be patented and off-limits for 20 years.
What can a
country do to change this? How should we change the policy to solve
this problem? There are two places you can attack it. One is the place where
patents are being applied for and issued, in the patent office. The
other is when patents are being applied—that is, the question of
what does a patent cover.
Changing the criteria for issuing patents or simply keeping a good
criteria for issuing patents, can work in a country which has not
authorized software patents before, for instance, for the most part,
in Europe. Simply to clearly re-enforce the European Patent Office's
rules which say that software is not patentable. This is a good
solution for Europe. Europe is now considering a directive on
software patents. The directive I suppose may be broader than that
but one of its important implications is for software patents. Simply
by modifying this to say software ideas cannot be patented will keep
the problem out of Europe for the most part, except for some countries
that may have admitted the problem on their own. Unfortunately one of
them being the UK. Unfortunately for you.
That approach won't work in the US. The reason is that the US already
has large numbers of software patents and any change in the criteria
for issuing patents won't get rid of the existing
ones. In fact, these patents are not officially
labeled as software patents. I say software patents but what do I
really mean? Patents which might potentially apply to software.
Patents which might potentially get you sued for writing software.
The patent office doesn't divide patents into software patents and
other patents. So, in fact, any patent might conceivably get you sued
for writing software if it could apply to some software. So in the US
the solution would have to be done through changing the applicability,
the scope of patents saying that a pure software implementation
running on general purpose computer hardware which does not in itself
infringe the patent, is not covered by any patent and you cannot get
sued for it. That is the other kind of solution.
The first kind of solution, the solution that operates on what types
of patents can be valid is a good solution for Europe to use.
When the US started having software patents, there was no political
debate. In fact, nobody noticed. The software field, for the most
part, didn't even notice. There was a supreme court decision in 1981
which considered a patent on a process for curing rubber. The ruling
was that the fact that the apparatus included a computer and a program
as part of the process to cure the rubber did not make it
The appeals court the next year which considers all
patent cases, reversed the qualifiers. They said the fact that there
is a computer and a program in this makes it patentable. The fact
that there is a computer and program in anything makes it patentable.
This is why the US started having business procedure patents. This is
because the business procedures were carried out on a computer and
that made them patentable. So this ruling was made and I think the
natural order recalculation patent was one of the first or might have
been even the first. Throughout the 80's we didn't know about this.
It was around 1990 that programmers in the US started to become aware
that they were faced with a danger from software patents. So i saw
how the field worked before and how the field worked after. I saw no
particular speed up in progress after 1990. There was no political
debate in the US, but in Europe there has been a big political debate.
Several years ago there was a push to amend the
Munich treaty that established the
European Patent Office. It has a
clause saying that software is not patentable. The push was to
amend that to start allowing software patents. But the community took
notice of this. It was actually free software developers and free
software users who took the lead.
We are not the only ones threatened by software patents. All software
developers are threatened by software patents and even software users
are threatened by software patents. For instance, Paul Heckel, when
Apple wasn't very scared of his threats, he threatened to start suing
Apple's customers. Apple found that very scary. They figured they
couldn't afford to have their customers being sued like that, even if
they would ultimately win. So the users can get sued too, either as a
way of attacking a developer or just as a way to squeeze money out of
them on their own or to cause mayhem.
All software developers and users are vulnerable. But it was the free
software community in Europe that took the lead in organizing
opposition. In fact, twice now the countries that govern the European
Patent Office voted not to amend that treaty. Then the EU took a hand
and the directorates of the EU were divided on the issue.
The one whose job is to promote software is against software
patents it seems. They were not in charge with this issue. It is the
open market directorate who is in charge and is lead by somebody who
is in favor of software patents. They basically disregarded public
opinion which has been expressed to them. They have proposed a
directive to allow software patents. The French
government has already said they are against it. People who are
working in various other governments in Europe to oppose software
patents and it is vital to start doing so here.
According to Hartmut
Pilch, who is one of the leaders in the European struggle against
software patents, the main impetus comes from
the UK Patent office. The UK
Patent Office is simply biased in favor of software patents. It had a
public consultation and most of the responses were opposed to software
patents. They then wrote a report saying that people seem to be
content with them, completely disregarding the answers. You see, the
free software community said please send the answers to them and
please send your answers to us too and we'll publish them. So they
published these answers which were generally opposed. You'd have
never guessed that from the report that the UK Patent Office
They (the UK Patent and Trademark Office) use a term that they call
technical effect. This is a term which can stretch tremendously. You
are supposed to think it means a program idea would only be patentable
if it relates closely to specific physical activities. If that is the
interpretation, it would mostly solve the problem. If the only
software ideas that can be patented were those that really did relate
to a particular technical, specific physical result that you might
have patented if you didn't use a program, that would be OK. The
problem is that you can stretch that term. You can describe the
result you get by running any program as a physical result. How does
this physical result different from every other? Well it is as a
result of this computation. The result is that the UK Patent Office
is proposing something that looks like it leads to mostly solving the
problem and really gives carte blanche for patenting almost anything.
The people in the same ministry are also involved in the copyright
issue which really has nothing to do with software patents except that
it is being handled by the same people. It is a question of
interpreting the recent EU copyright directive, a horrible law like
the Digital Millennium Copyright
Act in the US. But there is some latitude for countries to decide
how to implement it. The UK is proposing the most draconian possible
way of implementing this directive. You could greatly reduce the harm
that it does by implementing it properly. The UK wants to maximize
the tyrannical effect of this directive. It seems there is a certain
group, the Department of Trade and
Industry [archived], who need to be reined in. It is necessary to put a
check on their activities. Stop their creating new forms of power.
Software patents tie up every software developer and every computer
user in a new in a new form of bureaucrat. If the businesses that use
computers realized how much trouble this can cause for them, they
would be up in arms and I am sure they can stop it. Business doesn't
like being tied up in bureaucracy.
Sometimes, of course, it serves an important purpose. There are some
areas where we wish the UK government did a more careful job in tying
certain businesses up in bureaucracy, like when it involves moving
animals around. But in some cases, when it
doesn't serve any purpose except to create artificial monopolies so
that somebody can interfere with software development, squeeze money
out of developers and users, then we should reject it.
We need to make management aware of what software patents will do to
them. Get their support
in fighting against
software patents in Europe.
The battle is not over. It still can be won.
- There are approximately 300-400 unique parts in an
automatic transmission, and a transmission is generally the most
complicated component of an auto. To design a transmission may take
six months to a year, and even then it may take longer to actually
get it built and functioning. However, a program with 500 to 600
functional parts would have 200 to 300 lines of actual code, and
would probably take a good programmer a day to a week to write, test
- I say “software patents” but what do I
really mean? The U.S. patent office doesn't officially divide
patents into software patents and other patents. So, in fact, any
patent might conceivably get you sued for writing software if it
could apply to some software. Software patents are patents that
might potentially apply to software, patents that might potentially
get you sued for writing software.
- On 6 July 2005, the European Parliament rejected the
software patent directive by 648 out of 680 votes. However, we must
not forget the issue of software patents, as those who were pressing
for patenting are trying to revive the recently thrown-out
directive. We also have to ensure that the European Patent Office
(EPO) and the national offices in different EU countries stop
conceding patents for software included in other kinds of
- To make it harder for foot-and-mouth disease to
This essay is published
Software, Free Society: The Selected Essays of Richard