[glug-t] Patent Absurdity - Richard M Stallman.

Patent absurdity
Posted by incinerator on Jun 21, 2005 7:31 AM
LXer; By Richard Stallman
Score: barbarbar (6 votes; 100% positive)

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If patent law had been applied to novels in the 1880s,
great books would not have been written. If the EU
applies it to software, every computer user will be
restricted, says Richard Stallman

Next 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 programme 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 Misérables, 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 Misérables, 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 another.

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
Misérables 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 Misérables 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 Misérables.

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 Misérables 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 Misérables. 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 programme 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 programmes 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 programme can infringe
many different patents at once. It is so much work to
identify all the patents infringed by a large
programme 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
programme 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
programmes.

The way to prevent software patents from bollixing
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.

© 2005 Richard Stallman (rms@xxxxxxx). Verbatim
copying and distribution of this entire article are
permitted worldwide without royalty in any medium
provided this notice is preserved.

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


                
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