Bruce Perens: Software Patents vs. Free Software
May 03, 2001, 20:00 (18 Talkback[s])
(Other stories by Bruce Perens)
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By Bruce Perens <email@example.com>
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not those of my employer.
There's been a lot of press about my activities regarding software
patents and the summit meeting that I've called on Free
Software and The Law. Since the press tends to simplify things
and sometimes misinterprets them, it's time for me to talk about
the situation of Software Patents and Free Software in my own
The original letters patent were the orders of a king.
These early legal documents were often used to grant special
privileges to the kings friends. Many letters patent granted a
monopoly in a particular business to one family, forever. Anyone
else who went into the same business would have been defying the
orders of the king, so off with their heads!
The U.S. is important to this discussion because it's the cradle of
software and business-method patents. Most other nations don't
allow such things to be patented, although certain companies are
lobbying to change that. U.S. law, being a descendent of British
Common Law, has preserved the patent, though in a more limited
sense than its royal application. The Constitution of the United
Congress Shall Have Power To [...] promote
the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries
This is the entire justification for the existence of the U.S.
copyright and patent system. Both exist to promote
of science and the useful arts
technology, literature, and so on. If the patent and copyright
system do not
have the effect of promoting progress, they
aren't constitutional. Note that the constitution also says
Patents and copyrights are meant to
- if they don't, they aren't constitutional.
So, we might consider whether or not software patents are
actually promoting progress, or if they might even be hindering it.
Surprisingly, there is no
hard evidence that software and
business method patents promote progress. There don't seem to be
any good scientific studies on the issue.
The U.S. patent system rewards an inventor with a temporary
monopoly on their invention, in exchange for full public disclosure
of the invention. This is supposed to be an incentive for inventors
to disclose their work instead of keeping it secret. The Free
Software paradigm seems to be a better way of getting people to
disclose their software ideas than a monopoly grant. Perhaps that
alone is sufficient reason for a critical re-examination of the
idea of software patents.
When a patent expires, after 20 years, the invention goes into the
public domain, which means that it's everyone's property. Thus, you
can use the principle of an expired patent for free, you won't have
to pay the inventor a royalty. You are only allowed to patent
something that you really did invent, that hasn't been publicly
used or disclosed before. In the U.S., you get a year to file your
application after you create an invention. There are big penalties
for lying on your application, for example, for falsifying the date
of an invention.
Large companies like HP most often use patents
Since they know that other companies will
apply for patents and then sue for patent infringement, a company
that wants to defend itself files its own patents to use against
its competitors. This creates a détente
company and its competitors - each could sue the other in a similar
way, so neither one does. The competing companies generally enter a
licensing all of each others
patents. Each company thus nullifies the other company's power to
sue over its patents. Large companies are generally cross-licensed
with many other large companies, including their own competitors,
and thus their power to sue each other over patent infringement is
So, since the big companies patents all are used to nullify each
other, the patents really have zero value to the companies. Why,
then, do they bother with patents at all? I think the primary
reason is a typical feature of détente
: if you stop
behaving offensively before the other guys do, you lose. If one
large company stopped filing new patents, the other companies would
no longer have a reason to cross-license with that company, and
then the other companies would start filing patent-infringement
There are a few other reasons that large companies continue to file
patents: some of them want to use them to fight a competitor who
isn't cross-licensed, for example a Free Software developer who
writes a competing program. Some of them use patents to give
investors an impression that the company has value. However, the
vast majority of software patents, some say as high as 95% of them,
are actually invalid due to the existence of prior art.
Prior art means that someone else has invented the same thing
before, and has published or disclosed the invention in some way,
thus invalidating all future patents on that invention. Because
software patents are so often invalid, the investor is being
deceived. When I've taken this up with companies who are looking
for investment and list their patents as major assets, I usually
get an answer like yes, we know that is a problem for software
patents in general, but ours are enforcible.
So, who profits from all of this if the large companies don't? Not
the small and individual inventors, they can't afford to sue to
collect on their own patents. The system does keep a lot of patent
lawyers in business, costing companies Billions every year. It may
also keep some research scientists in business, since companies
sponsor research departments so that they can have a steady flow of
inventions upon which to file patents.
Of course, getting companies to sponsor research is a good thing,
and you might even think it justifies the patent system. However,
wouldn't it be better if the research was targeted to benefit the
company and its customers rather than to provide ammunition for an
eternal stalemate of a patent war? And wouldn't it be better if the
inventions of publicly-funded research organizations like
universities were in the public domain, since the public has paid
for them? Instead, they are tied up with patents and sold. Some
universities claim that they need to be able to sell that patent
monopoly, or they won't be able to entice anyone to develop their
ideas commercially. Although this is a dubious claim, a U.S. law
patenting as part of the "technology
transfer" of publicly-funded research.
A trend over the past decade has been a new kind of patent
company that exists only to sue other companies. The
parasite buys up patents and then files infringement lawsuits
against other companies with deep pockets and a lot to lose. The
parasite offers licensing terms of a few tens or hundreds of
thousands of dollars, versus a cost of Millions for the victim to
successfully defend themselves in a lawsuit. The victim generally
caves in and pays the license fee, even though they could
eventually have proven the patent to be invalid in court. So, this
is another tremendous drain of company funds caused by the patent
system. Parasites don't enter cross-licensing agreements, so they
represent one of the worst offensive uses of patents.
The cross-licensing defense works well if you have a lot of patents
to use as ammunition, as a large company might, but the Free
Software community has only a handful of patents held by a few
individual developers, and thus ends up being an innocent bystander
injured by a war of giants. Since it costs tens or hundreds of
thousands of dollars in legal fees to successfully file an
enforcible patent, we don't expect to get many more of them. So,
scratch the cross-licensing defense for now.
Since most software and business method patents are actually
invalid, why don't we just prove that in court? It often takes
Millions of dollars and years of time to win a single patent case.
I don't know many Free Software developers who could afford to
fight even one patent, and we are faced with hundreds of thousands
Then, why don't we just "fix" the patent system? Well, the best way
of fixing it might simply be to dispose of software and business
method patents entirely, but most of the proposals to "fix" the
patent system simply try to make the problem only a little bit
better. For example, there are plans to provide patent examiners
with more prior art so that they will reject more of the invalid
patents, but not nearly enough to solve the problem. Such proposals
can only be treated as interim strategies, poor defenses to tide us
over until we can really solve the problem.
Arguments for killing software and business patents abound:
Of course there's the argument that software and business patents
don't help advance science and the useful arts, and thus are
Another argument is that the software patents are all on
applications of a versatile hardware device called a "computer",
and that the computer, as a hardware device, is the only part that
should have been patented.
Yet another argument is that the 20-year term of software patents
is actually much longer than the useful lifetime of the invention.
This circumvents the constitutional requirement that patents have a
limited term, because the invention is so obsolete as to be without
any remaining value at all by the time it reaches the public
domain. It's easy to see this, since a "generation" of computer
technology is only a few years long. 20 years is infinity compared
to the speed of computer technology development or the lifetime of
a computer product.
An argument against business method patents is that the monopoly
they can create on a particular form of business could be in
violation of anti-trust laws.
And of course an argument against the acceptance of software and
business-method patents in other countries than the U.S. is that
this would constitute a U.S.A. Tax.
Those countries would
just take all of their patent royalties and send them to the
U.S.A., where the software and business-method patent owners are
But the best argument for this
essay is that software
patents block Free Software development. Today, they are a
nuisance, tomorrow they could be much more. There are companies
that see Free Software, especially GNU/Linux, as an interloper to
be shut down, a competitor to be eliminated. Some of these
companies have increased the rate at which they file new patents.
It's not impossible that these companies and their business
partners could start going after Free Software developers, en
with patent infringement lawsuits. Since essentially
none of us can afford to defend ourselves, most developers would be
forced to cave in, withdraw their software, and stop participating
in Free Software development. We must be ready with a defense,
before that day comes.
Ironically, some of the biggest patent holders are the Free
Software Community's own partners, companies like IBM and HP that
have aggressively incorporated GNU/Linux into their business plans
and expect significant revenue from it before long. IBM is said to
hold 10% of software patents, and HP is one of the largest patent
holders in general. It's important for us to start a dialogue with
these and other partners. That's why I am calling a summit meeting
on Free Software and The Law.
Patents will be a full-day
topic, with DMCA, UCITA, license law, and other legal issues
covered on a subsequent day. Unfortunately, this isn't a public
meeting. When asked about that, Richard Stallman said inviting
a public audience to a negotiation isn't the best way to get an
However, I've invited a broad slate of Free
Software representatives, covering all of our various viewpoints,
and will invite a few more.
The meeting will simply be a discussion and a negotiation, none of
it is set in stone, but there are some things that the Free
Software community representatives might be likely to ask for. For
example, we might ask for some assurance that our corporate
partners aren't going to sue us. When Eric Raymond and I asked this
of an IBM representative recently, the answer was we're not
prosecuting our patents against Open Source developers.
hasn't sued any of us either, although they haven't stated their
policy in so many words. But perhaps the Free Software developers,
enthusiastic partners of IBM, HP, and other companies, deserve a
little more formal assurance of that policy and its
Another issue we might discuss is how to defend a Free Software
developer when he or she is sued for patent infringement. It might
be fair to ask our partners, who have much deeper pockets than
ours, to help vest a fund for our defense with an organization like
FSF or EFF. Or perhaps we should deal with each lawsuit as it comes
up? With the DeCSS lawsuits, we found that EFF can defend less than
one case per year. We'll need more than that.
Since our software has proven so useful and effective in our
partner companies, I think the Free Software community would be
negotiating from a position of strength. We've proven our worth to
our partners, and now we deserve to understand how far they'll go
for us. Hopefully, that will come out in the summit discussion.
So, you can see that we have a lot to talk about, both at the
summit and in the Free Software community in general. The summit is
being held on August 31 and September 1, in San Francisco,
immediately after the LinuxWorld conference there. Thus, many of
the key players will be in town. HP has generously promised enough
funds to provide the meeting facilities and catering, and to cover
travel and lodging of some free software representatives who can
not pay their own way. HP says they are open to having equal
co-sponsors, so that the conference won't appear to be
predominantly HP's. SSC has promised to cover travel and lodging
expenses for Richard Stallman, and other co-sponsors will probably
step up before the meeting.
I hope I've cleared up some mis-perception of what I've been
working on, and if this essay has been educational for you, I
consider that an achievement in itself. Of course, I'm open to your
ideas. If you have comments or questions, please feel free to write
me at firstname.lastname@example.org
the phone number listed on my web site.
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