Software Patents

Authors: Lloyd Hardy, Richard Stallman

Revision: 1.8 (2014/12/22)

4.0 – Software Patents WORKING DRAFT

Software patents are fixed-term monopolies on a software related idea, granted by some patent authorities in certain jurisdictions. Software patents, by definition limit the capability for a software developer to innovate. Regardless of whether that developer is the patent holder or a third party, software developers are limited by the patents held by others.

Software patent is a form of protection for an invention. Authorities gives time limit for monopoly on the innovation. Software patents helps innovator keep it secret to benefit from it economically. Which will deny apply knowledge for creating similar innovation by any body else because it is protected by patent. Any body can violate the software patent without realizing that it exist and even if you thought of it separately. When authorities grants software patent allows the innovator to put any price on the licenses and there is no law for them to be reasonable or fair to public. Patents will limit any developer applying knowledge on similar projects if it will brake any part of patents that is already taken out by somebody. Large corporations that take out patents for the innovations mainly use them as weapons to attack smaller size businesses or same size corporations.

4.1– Software Patents Used as Weapons

Time line given for the patent on certain innovation nobody can write or create similar innovation without infringing software patents already out to protect it. Software patents can be compared to loaded gun put to your head and before the trigger pushed by the patent holder, but before shooting you the patent holder will ask for you to pay money to him/her. Patent holder has all rights to the innovation so there is no legal right for him/her to be reasonable to any body who wants to use or make similar innovation. Patents can be used as weapon to put companies out of business for patent infringement even if they didn't realized about such patent already out. Another way software patent can be used as weapon is by the person to register the idea first at the patent office and without patent holder permission nobody else can use it. Software patent can be compared in one instants to mafia which is also business model except even mafia have standards where it not can be said about software patents.

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4.2

4.1 – How Software Patents Are Granted

A software developer with an idea makes an application to register a patent with the patent office of the relevant jurisdiction. The applicant pays a registration fee. The patent registrar reviews the patent application and performs a search to ensure that the patent is 'novel' and that there is no 'prior art'. This should verify that the patent application does not duplicate a patent already registered and that no work already exists otherwise which implements the idea.

Problem 1: There is no effective way to search for prior art in software development

Once a patent is granted, further payments are usually required to retain the patent for a defined period of time (typically of up to 20 years or so).

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4.3

4.2 – How Copyright is Applied

A software author can choose to apply a copyright notice to their work simply by doing so. This does not cost the author any money and may contain conditions to the use and distribution of the software.

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4.4

4.1 – Differences From Copyright

Software patents are descriptions of functionality and very general when compared to copyright. Copyright is the right of an author to decide how their software is used. Software patents prevent the idea from being implemented by another in the jurisdiction. Copyright prevents from the actual work being copied verbatim.

“Copyright protects authors but doesn't hurt any honest person. Patents, in contrast, are 20-year monopolies that the government grants on broad and general ideas. Patents are potential weapons against all of us.” [1]

Copyright protects the author from their work being copied, patents stop the idea from being used by anyone else. That may work in certain industries, but advances in software development are based on the sharing of ideas and the evolution of code. A patent harms development, whereas copyright protects it.

For example, to infringe copyright, one would have to directly copy work from another author in a way which breached the author's chosen copyright clause. Infringing a patent is possible without ever having read

No Protection for The Small Guy

Some may suggest that a patent gives an author stronger protection in the case of a third party copying their work without authorisation. This promotes the image of an inventor, having an idea and making it all the way from the garden shed or the bedroom office to the boardroom of a multi-billion dollar .com. However, the reality is much different. Patents do nothing to protect the individual. firstly, patents require an immense amount of money to defend. There is no point having a patent unless you can defend it against the multinationals who will surely infringe it at some time or another.

You can get into trouble without doing anything unethical!

Another problem is that patents stop this sole developer form developing at all! She may choose to write code that is free from proprietary restriction or not - that depends on her ethics. But if a software patent that a third party owns is enforceable in her jurisdiction, then she could be in trouble. you see, you can infringe a software patent without even knowing of its existence. You can't accidentally infringe copyright - you have to go and copy code to do that and not adhere to the copyright holders requirements.

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4.5

4.3 – The Truth About Software Patents

[cont...]

Truth is that software patents are mainly created to protect big corporations so they could use software patent to attack others. Software patents limits any other software engineer to apply knowledge from inventing something new or create healthy competition for the much bigger companies around a world. Patents also endanger any further development of free software. Software patents will endanger smaller countries companies and there information technology infrastructure due to small possibilities for local companies to develop software. As there wont be able to create much new software due to patents taken out by other people some where in the world.

“Software patents are dangerous to software developers because they impose monopolies on software ideas. It is not feasible or safe to develop non-trivial software if you must thread a maze of patents. ”

“Every program combines many ideas; a large program implements thousands of them. Google recently estimated there might be 250,000 patented ideas in a smartphone. I find that figure plausible, because in 2004 I estimated that the GNU/Linux operating system implemented around 100,000 actually patented ideas. (Linux, the kernel, had been found by Dan Ravicher to contain 283 such ideas, and was estimated to be 25% of the whole system at the time.)” [3]

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4.6

4.4 – Software Patents in Europe, US & Worldwide

[cont...]

U.S.A opened doors to software patents and not all of the countries around the world are the same with applying software patents for example Japan and most of Asia follow mostly U.S where Europe are more conservative to this issue. Every European Union country maintains there own patent office and applies there own patent related laws. European Patent Convention (EPC) article 52 states that that anything useful to the industry such as software it wont qualify automatic and the invention have to be an technical nature to be patented. The particular product is not regarded as inventions as it states in article 52 part 2 by European Patent Convention:

“(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; “ [4]

For example some countries like India where in 2005 Indian Parliament quashed software patent law. Where countries like New Zealand, Philippines and South Africa excluded software from being patentable.

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4.7

4.4 – Example Cases

[cont...]

Yahoo sues Xfire for patent infringement.

parent control

In 2005 Yahoo sued small company called Xfire. Xfire which runs online gaming services to public. Yahoo maid complain to U.S District Court North California for copy right infringement. Yahoo was convinced that Xfire was using same idea for their innovation which allows friends to chat to each other while playing online. Xfire innovation was compared to the Yahoo live messenger because on there project was working ex-Yahoo employees worked on messenger project before switching to Xfire. Such case would cost around $2 millions and around two years to fully adjudicate described by lawyers. The settlement was agreed between two companies after one year and was disclosed from public.

Web-store patent in Europe.

European patent office already granted 30,000 on small and general things that will make challenging to create web store without infringement of patents such as:

Web shop: Selling products/services over network using a server, client and payment processor, or using a client and a server are protected by following patents – EP803105, EP738446 and EP1016014.
Order by cell phone: Selling products/services over a mobile phone network is protected by following patent – EP1090494.
Shopping cart: electronic shopping cart is owned by Sun Microsystems Inc are protected by the following patent – EP807891.
[CDs] [Films] [Books]: Tabbed palettes and restrict search are protected by the following patents - EP689133 owned by ADOBE SYSTEMS INC. and EP1131752.
Picture link: Preview window – EP537100.
Get key via sms: Sending key to decrypt bought data via mobile phone network – EP1374189.
View film: Video streaming is protected by the following patent – EP633694.
Copy protection: Encrypt file so it can only be played on authorised devices – EP1072143.
Credit card: Pay with credit card on the Internet – EP779587.
Adapt pages: Generate different web page depending on detected device – EP1320972 .
Request loan: Automated loan application – EP715740.
Secure card payment: Secure online credit/debit card payment with PIN code – EP1218865.
Send oers: Send oers in response to request – EP986016.
Delivery: Ship items to the correct pick-up point of the used delivery service – EP1181655.
Support system: Support system based on answers to questions – EP915422.
Preview chapters: Use of TV as metaphor for selecting different video fragments – EP670652.
Image: Reduce page loading time by automatically reducing image quality – EP992922.
Related results: Show related results if customer likes the current ones – EP628919.
Rebate code: Allow rebate codes to be entered by customers – EP929874.
Web-to-Print: Generation of prepress formats or printouts from low resolution templates via the Internet - EP852359 and EP1169848.

References

[1] http://www.nosoftwarepatents.com/en/m/basics/index.html (Accessed: 2010/07/09)

[2] http://www.ffii.org (Accessed: 2010/07/09)

[3] http://www.guardian.co.uk/technology/2011/aug/22/european-unitary-patent-software-warning (Accessed 2012/07/06)

[4] http://www.epo.org/law-practice/legal-texts/html/epc/1973/e/ar52.html (Accessed 2012/07/06)

http://en.wikipedia.org/wiki/Software_patent (Accessed 2012/07/10)

http://news.cnet.com/Group-Linux-potentially-infringes-283-patents/2100-7344_3-5291403.html (Accessed 2012/07/10)

http://paulgraham.com/softwarepatents.html (Accessed 2012/07/10)

Further Reading

Title. Author

Available from: http://www...

http://progfree.org/index.html - League for Programming Freedom (Patents)