From epa98@doc.ic.ac.uk Thu, 04 Nov 1999 18:15:57 +0000 Date: Thu, 04 Nov 1999 18:15:57 +0000 From: Ed Avis epa98@doc.ic.ac.uk Subject: [Patents] Letter to UK Patent Office After lurking on this list for some time, I felt I ought to write to an official in my country, the UK (which is not mentioned in ) and explain why software patents are a bad idea. I found the address of somebody responsible for 'modernizing the intellectual property rights system' and wrote to him via email. The 'letter' is below. -------- To: xxxx Subject: Software patents From: Ed Avis Dear Sir, I am concerned at moves to allow patents on computer programs and algorithms in Europe. I think that this would be misguided, hamper innovation, and disadvantage British consumers and businesses. The patent system is not appropriate for software. First, I don't think that the question of whether a computer program is an 'invention' is relevant. Just because patents are useful for some kinds of invention doesn't mean that we should blindly apply the same policy to software. Speaking as a software developer myself, I would say that a program is more like a literary work, but either way, we should consider a patent system on its merits, and not by just carrying over a system from some other area. We should consider whether software patents would promote innovation, whether they would encourage disclosure of new techniques, and whether they would benefit the writers or users of software. In doing this we have an excellent example to consider, the software patent system in the US. Software patents in America have been a disaster. Software developers constantly face the threat of lawsuits from companies which hold hundreds, thousands of patents on ideas which any software engineer - or in some cases, even any layman - would consider trivial or obvious. The only way to defend against this is to get your own collection of patents, preferably worded as vaguely as possible so that it will be impossible to write a program without infringing. Then you can countersue if anyone claims you are infringing on their patent, and probably reach a cross-licensing arrangement. The people who lose out are the small to medium size software developers, who cannot afford a large enough legal department and a big enough patent portfolio for defence. Some companies (such as Oracle, the leading database company) have openly admitted that the only reason they apply for patents is to defend themselves against spurious lawsuits from other patent holders. Small developers are the ones who lose out, and it is small developers who make most of the breakthrough innovations in software. In any case, the hard work is covered by copyright (see below) and patents are obtained only as a legal weapon. So patents do not help innovation. Do patents encourage disclosure? This is not true either. Disclosing the human-readable source code to a program opens up a developer to patent infringement lawsuits, which are less likely if the program's workings are kept secret. The fact that patents once granted are made public is not very significant here, since any important and non-trivial algorithm would need to be made public in any case, in order to become an accepted standard. Do patents on software benefit the consumer? No. There is a grave threat to competitiveness in many markets from patented business models, which are quite easy to achieve if you are allowed to get patents on particular software ideas. For example, a patent was recently granted in Norway which, according to its owner, covers all e-commerce in Europe. In America, the bookseller Barnes & Noble was sued by rival Amazon.com over placing a link to 'buy now' on its web pages. If Europe starts granting patents on computer programs, it will be possible to get a monopoly on a particular business model simply by patenting the idea of a software program that implements that model. In the software market, consumers also lose out. Patents make it easy to stamp out competing or compatible products, by adding some trivial 'wrinkle' to data formats used and then patenting it. The software market is naturally very prone to creating monopolies; it doesn't need any extra help from the patent system. Developers are expected to check every line of their code against thousands of existing patents. Consider that the USPTO has allowed the same algorithm (LZW compression) to be patented twice, by Unisys and by IBM. If even the patent office cannot check an application against previous patents, what hope is there for the developer checking a 500,000 line program? I don't think that software patents in America have benefited anybody except a handful of very large corporations and patent lawyers. Some people have advocated introducing software patents in Europe, claiming that it will help small European software firms compete against large American ones. I think I have explained why quite the opposite is true; the best help we can give to software firms is an open and competitive marketplace. Others claim that software patents will help in the fight against piracy, which is a complete non sequitur. Software piracy is a copyright violation and has nothing to do with patents. Neither should we harmonize our laws with America just for the sake of it; it's unfortunate that the US system is so harmful, but at least we are free of it here. (In any case, patents on software happened by accident; Congress didn't pass any law, but rather judges ruled that software was an invention and hence should be patentable. They did not, however, rule that since it was an invention it should not be copyrightable.) On a different level, software is unlike physical inventions. Innovation in software development is not a big event but an everyday occurrence; every program a developer writes will contain some new technique or a new way of combining existing techniques. Software development is fundamentally about combining a large number of existing ideas in new ways, and this work is covered by copyright. Copyright works well for software; it covers the hard part of development, which is actually writing the code, testing, and documentating. Patents serve only to hamper other programs which have been developed independently. Don't take my word for it that patents are a danger, hear what Tim Berners-Lee, the creator of the World Wide Web has to say: "I appreciate the reasons why the patent system was set up, but there is a really big problem here... The bar for innovation seems too low. You are able to take an existing social practice and write software to do it and get a patent." If you wish, I can refer you to dozens of other sources who agree with what I am saying. It is difficult to find anybody in favour of software patents, except for statements from large companies such as IBM. Sorry that this is a long letter, but this is a subject of great importance, not just for the software industry, but for the whole world in the information age. In summary: - Consider what will promote innovation, rather than trying to define what is an 'invention'. - In practice, software patents are used as a legal weapon against competitors, rather than to protect genuine innovations. - Patents discourage rather than help innovation and disclosure. - Patents are a serious obstacle to competition both in the software market and online. and most importantly: - Software is already covered by copyright. I hope that the Patent Office will argue against granting patents on software in Europe, whether by changing article 52.2 or by any other method. -------- In fact, I did not write to exactly the right person (that's why I haven't given the address above). A few days later (yesterday) I got a reply from Jeff Watson at the Patent Office, who it turns out is a subscriber to this list! Here is his reply: --------- Subject: Software patents -Reply Date: Thu, 04 Nov 1999 14:01:21 +0000 From: Jeff Watson To: epa98@doc.ic.ac.uk Dear Mr Avis Thank you for your email of 1 November. I am responding as I co-ordinate policy matters for software patents. Reading through your comments them seem to be quite consistent with the conclusions reached at our conference held in March 1998 (see http://www.patent.gov.uk/softpat/index.html). As an introduction to that event we pointed out the role of copyright as well as other intellectual property rights in providing protection for software. I think you will also agree with the conclusion drawn by Paul Hartnack (then our Comptroller-General) that any proposals for change need to be judged on whether they provide " a system for protecting new ideas, on software, which enables the modern dynamic and inventive people, who make up this industry, to prosper, to the benefit of Europe in the twenty-first century". As I expect you are aware, we are awaiting a proposal from the European Commission for Software Patents Direcitve. Our approach will be consider this proposal on the basis outlined above encouraging comments from UK interests. I hope the above is helpful. Jeff Watson Intellectual Property Policy Directorate The Patent Office Tel- +44 1633 813650 Fax +44 1633 814922 -------- Mr Watson has said he'd prefer not to be swamped with further messages, so it's probably polite _not_ to add his details to the 'write to me' web page. Unless the UK Patent Office changes its policy, of course :-) -- Ed Avis epa98@doc.ic.ac.uk