[Fsfe-ie] Patently absurd by RMS

teresahackett at eircom.net teresahackett at eircom.net
Tue Jul 12 11:52:41 CEST 2005

Patently absurd
By Richard Stallman (Sydney Morning Herald)
July 5, 2005

Richard Stallman: "If patent law had been applied to novels in the 
1880s, great books would not have been written."

This month, the European Parliament will vote on the vital question of 
whether to allow patents covering software, which would restrict every 
computer user and tie software developers up in knots.
Many politicians may be voting blindly - not being programmers, they 
don't understand what software patents do. They often think patents are 
similar to copyright law (except for some details), which is not the case.

For example, when I publicly asked Patrick Devedjian, then the minister 
for industry, how France would vote on the issue of software patents, he 
responded with an impassioned defence of copyright law, praising Victor 
Hugo for his role in the adoption of copyright.

Those who imagine effects like those of copyright law cannot grasp the 
real effects of software patents. We can use Hugo as an example to 
illustrate the difference between the two.

A novel and a modern complex program have certain points in common: each 
is large and implements many ideas. Suppose patent law had been applied 
to novels in the 1800s; suppose states such as France had permitted the 
patenting of literary ideas. How would this have affected Hugo's 
writing? How would the effects of literary patents compare with the 
effects of literary copyright?

Consider the novel Les Miserables, written by Hugo. Because he wrote it, 
the copyright belonged only to him. He did not have to fear that some 
stranger could sue him for copyright infringement and win. That was 
impossible, because copyright covers only the details of a work of 
authorship, and only restricts copying. Hugo had not copied Les
Miserables, so he was not in danger.

Patents work differently. They cover ideas - each patent is a monopoly 
on practising some idea, which is described in the patent itself.
Here's one example of a hypothetical literary patent:

Claim 1: a communication process that represents, in the mind of a 
reader, the concept of a character who has been in jail for a long time 
and becomes bitter towards society and humankind.

Claim 2: a communication process according to claim 1, wherein said 
character subsequently finds moral redemption through the kindness of 

Claim 3: a communication process according to claims 1 and 2, wherein 
said character changes his name during the story.
If such a patent had existed in 1862 when Les Miserables was published, 
the novel would have infringed all three claims - all these things 
happened to Jean Valjean in the novel. Hugo could have been sued, and 
would have lost. The novel could have been prohibited - in effect, 
censored - by the patent holder.

Now consider this hypothetical literary patent:

Claim 1: a communication process that represents, in the mind of a 
reader, the concept of a character who has been in jail for a long time 
and subsequently changes his name.
Les Miserables would have infringed that patent, too, because it also 
fits the life story of Jean Valjean.

These patents would all cover the story of one character in a novel. 
They overlap but they do not precisely duplicate each other, so they 
could all be valid simultaneously - all the patent holders could have 
sued Victor Hugo. Any one of them could have prohibited publication of 
Les Miserables.

You might think these ideas are so simple that no patent office would 
have issued them. We programmers are often amazed by the simplicity of 
the ideas that real software patents cover - for instance, the European 
Patent Office has issued a patent on the progress bar, and one on 
accepting payment via credit cards. These would be laughable if they 
were not so dangerous.

Other aspects of Les Miserables could also have fallen foul of patents. 
For instance, there could have been a patent on a fictionalised 
portrayal of the battle of Waterloo, or a patent on using Parisian slang 
in fiction. Two more lawsuits.

In fact, there is no limit to the number of different patents that might 
have been applicable for suing the author of a work like Les Miserables. 
All the patent holders would claim they deserved a reward for the 
literary progress that their patented ideas represented - but these 
obstacles would not promote progress in literature. They would only 
obstruct it.

However, a very broad patent could have made all these issues 
irrelevant. Imagine patents with broad claims, like these:
Communication process structured with narration that continues through 
many pages.

A narration structure sometimes resembling a fugue or improvisation.
Intrigue articulated around the confrontation of specific characters, 
each in turn setting traps for the others.
Who would the patent holders have been? They could have been other 
novelists, perhaps Dumas or Balzac, who had written such novels - but 
not necessarily.

It isn't necessary to write a program to patent a software idea, so if 
our hypothetical literary patents follow the real patent system, these 
patent holders would not have had to write novels, or stories, or 
anything - except patent applications.

Patent parasite companies - businesses that produce nothing except 
threats and lawsuits - are growing larger.

Given these broad patents Hugo would not have reached the point of 
asking what patents might get him sued for using the character of Jean 
Valjean. He could not even have considered writing a novel of this kind. 
This analogy can help non-programmers to see what software patents do. 
Software patents cover features, such as defining abbreviations in a 
word processor or natural order recalculation in a spreadsheet.

They cover algorithms that programs need to use. They cover aspects of 
file formats, such as Microsoft's new formats for Word files. The MPEG 2 
video format is covered by 39 different US patents.

Just as one novel could infringe many different literary patents at 
once, one program can infringe many different patents at once. It is so 
much work to identify all the patents infringed by a large program that 
only one such study has been done.

A 2004 study of Linux, the kernel of the GNU/Linux operating system, 
found that it infringed 283 different US software patents. That means 
each of these 283 different patents covers a computational process found 
somewhere in the thousands of pages of source code of Linux.
The text of the directive approved by the council of ministers clearly 
authorises patents covering software techniques.

Its backers claim the requirement for patents to have a "technical 
character" will exclude software patents - but it will not. It is easy 
to describe a computer program in a "technical" way, the boards of 
appeal of the European Patent Office said.

The board is aware that its comparatively broad interpretation of the 
term "invention" in Article 52 (1) EPC will include activities so 
familiar that their technical character tends to be overlooked, such as 
the act of writing using pen and paper. Any usable software can be 
"loaded and executed in a computer, programmed computer network or other 
programmable apparatus" in order to do its job, which is the criterion 
in article 5 (2) of the directive for patents to prohibit even the 
publication of programs.

The way to prevent software patents from bollocksing software 
development is simple: don't authorise them. In the first reading, in 
2003, the European parliament adopted the necessary amendments to 
exclude software patents, but the council of ministers reversed the 
decision. Citizens of the EU should phone their MEPs without delay, 
urging them to sustain the parliament's previous decision in the second 
reading of the directive.

Richard Stallman launched the GNU operating system (www.gnu.org) in 1984 
and founded the Free Software Foundation (fsf.org) in 1985. Gerald 
Sedrati-Dinet devised the examples in this article.

Australia and EU share similar software problems

Australia's intellectual property regime in many ways mirrors what the 
European Union is debating.
Australia has no specific statutory provision covering software and it 
is impossible to patent pure software that is simply a set of 
instructions, although it is protected by the Copyright Act (1968). 
Australia also restricts the patenting of business processes, which is 
possible in the US.
But the federal regulatory body IP Australia says patenting of software 
inventions is possible when the software is implemented on a machine, 
such as a PC, to produce some beneficial result that is new, inventive 
and useful. A patentable software invention must involve some amount of 
ingenuity and produce a practical solution to a technological problem. 
Patents cannot be granted for discoveries, ideas, scientific principals 
or mathematical algorithms.
According to the deputy commissioner of patents at IP Australia, Philip 
Spann, any change here requires an act of parliament or a court 
decision. Spann says he is unaware of any local studies of the 
patentability of software inventions. A September 2003 review of the 
patenting of business systems recommended they be excluded.
Opponents to the European directive say the rate of patent applications 
will rise sharply while granting additional legal grounds for 20 years 
to patent holders of such widely adopted techniques as distributing 
videos on the net.
Nigel Stoate, a patent attorney with London firm Taylor Wessing, says 
the directive leaves the status quo mostly unchanged. About 30,000 
software patents are granted by the European Patent Office and the scope 
of patentability will not be significantly widened. Mr Stoate says the 
directive removes inconsistencies in granting software patents across 
the EU's jurisdictions.
"Europe recognises that patenting software is important to keep up with 
the US, and the new directive achieves this," Mr Stoate says. "The new 
directive is intended to harmonise the position across all the member 
states." - Brad Howarth

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