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<title>Patent Reform Is Not Enough - GNU Project - Free Software Foundation</title>
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<h2>Patent Reform Is Not Enough</h2>
<div class="thin"></div>

<p>
When people first learn about the problem of software patents, their
attention is often drawn to the egregious examples: patents that cover
techniques already widely known.  These techniques include sorting a
collection of formulae so that no variable is used before it is
calculated (called &ldquo;natural order recalculation&rdquo; in
spreadsheets), and the use of exclusive-or to modify the contents of a
bit-map display.</p>

<p>
Focusing on these examples can lead some people to ignore the rest of
the problem.  They are attracted to the position that the patent
system is basically correct and needs only &ldquo;reforms&rdquo; to
carry out its own rules properly.</p>

<p>
But would correct implementation really solve the problem of software
patents?  Let's consider an example.</p>

<p>
In the early 90s we desperately needed a new free program for
compression, because the old de-facto standard &ldquo;compress&rdquo;
program had been taken away from us by patents.  In April 1991,
software developer Ross Williams began publishing a series of data
compression programs using new algorithms of his own devising.  Their
superior speed and compression quality soon attracted users.</p>

<p>
That September, when the FSF was about a week away from releasing one
of them as the new choice for compressing our distribution files, use
of these programs in the United States was halted by a newly issued
patent, number 5,049,881.</p>

<p>
Under the patent system's rules, whether the public is allowed to use
these programs (i.e., whether the patent is invalid) depends on
whether there is &ldquo;prior art&rdquo;: whether the basic idea was
published before the patent application, which was on June 18, 1990.
Williams' publication in April 1991 came after that date, so it does
not count.</p>

<p>
A student described a similar algorithm in 1988-1989 in a class paper
at the University of San Francisco, but the paper was not published.
So it does not count as prior art under the current rules.</p>

<p>
Reforms to make the patent system work &ldquo;properly&rdquo; would
not have prevented this problem.  Under the rules of the patent
system, this patent seems valid.  There was no prior art for it.  It
is not close to obvious, as the patent system interprets the term.
(Like most patents, it is neither worldshaking nor trivial, but
somewhere in between.)  The fault is in the rules themselves, not
their execution.</p>

<p>
In the US legal system, patents are intended as a bargain between
society and individuals; society is supposed to gain through the
disclosure of techniques that would otherwise never be available.  It
is clear that society has gained nothing by issuing patent number
5,049,881.  This technique was going to be available anyway.  It was
easy enough to find that several people did so at around the same
time.</p>

<p>
Under current rules, our ability to use Williams's programs depends on
whether anyone happened to publish the same idea before June 18, 1990.
That is to say, it depends on luck.  This system is good for promoting
the practice of law, but not progress in software.</p>

<p>
Teaching the Patent Office to look at more of the existing prior art
might prevent some outrageous mistakes.  It will not cure the greater
problem, which is the patenting of every <em>new</em> wrinkle in the use
of computers, like the one that Williams and others independently
developed.</p>

<p>
This will turn software into a quagmire.  Even an innovative program
typically uses dozens of not-quite-new techniques and features, each
of which might have been patented.  Our ability to use each wrinkle
will depend on luck, and if we are unlucky half the time, few programs
will escape infringing a large number of patents.  Navigating the maze
of patents will be harder than writing software.  As <cite>The
Economist</cite> says, software patents are simply bad for business.</p>

<h3>What you can do to help</h3>

<p>
There is a massive effort in Europe to stop software patents.  Please
<!-- [Dead as of 2019-03-23] support <a href="http://stopsoftwarepatents.eu/">this
petition</a> for a Europe free of software patents, and --> see <a
href="https://ffii.org/"> the FFII web site</a> for full details of
how you can help.</p>
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<p class="unprintable">Updated:
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1	<!--#include virtual="/server/header.html" -->
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4	<!--#set var="TAGS" value="essays laws patents" -->
5	<!--#set var="DISABLE_TOP_ADDENDUM" value="yes" -->
6	<title>Patent Reform Is Not Enough - GNU Project - Free Software Foundation</title>
7	<!--#include virtual="/philosophy/po/patent-reform-is-not-enough.translist" -->
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12	<div class="article reduced-width">
13	<h2>Patent Reform Is Not Enough</h2>
14	<div class="thin"></div>
15
16	<p>
17	When people first learn about the problem of software patents, their
18	attention is often drawn to the egregious examples: patents that cover
19	techniques already widely known. These techniques include sorting a
20	collection of formulae so that no variable is used before it is
21	calculated (called “natural order recalculation” in
22	spreadsheets), and the use of exclusive-or to modify the contents of a
23	bit-map display.</p>
24
25	<p>
26	Focusing on these examples can lead some people to ignore the rest of
27	the problem. They are attracted to the position that the patent
28	system is basically correct and needs only “reforms” to
29	carry out its own rules properly.</p>
30
31	<p>
32	But would correct implementation really solve the problem of software
33	patents? Let's consider an example.</p>
34
35	<p>
36	In the early 90s we desperately needed a new free program for
37	compression, because the old de-facto standard “compress”
38	program had been taken away from us by patents. In April 1991,
39	software developer Ross Williams began publishing a series of data
40	compression programs using new algorithms of his own devising. Their
41	superior speed and compression quality soon attracted users.</p>
42
43	<p>
44	That September, when the FSF was about a week away from releasing one
45	of them as the new choice for compressing our distribution files, use
46	of these programs in the United States was halted by a newly issued
47	patent, number 5,049,881.</p>
48
49	<p>
50	Under the patent system's rules, whether the public is allowed to use
51	these programs (i.e., whether the patent is invalid) depends on
52	whether there is “prior art”: whether the basic idea was
53	published before the patent application, which was on June 18, 1990.
54	Williams' publication in April 1991 came after that date, so it does
55	not count.</p>
56
57	<p>
58	A student described a similar algorithm in 1988-1989 in a class paper
59	at the University of San Francisco, but the paper was not published.
60	So it does not count as prior art under the current rules.</p>
61
62	<p>
63	Reforms to make the patent system work “properly” would
64	not have prevented this problem. Under the rules of the patent
65	system, this patent seems valid. There was no prior art for it. It
66	is not close to obvious, as the patent system interprets the term.
67	(Like most patents, it is neither worldshaking nor trivial, but
68	somewhere in between.) The fault is in the rules themselves, not
69	their execution.</p>
70
71	<p>
72	In the US legal system, patents are intended as a bargain between
73	society and individuals; society is supposed to gain through the
74	disclosure of techniques that would otherwise never be available. It
75	is clear that society has gained nothing by issuing patent number
76	5,049,881. This technique was going to be available anyway. It was
77	easy enough to find that several people did so at around the same
78	time.</p>
79
80	<p>
81	Under current rules, our ability to use Williams's programs depends on
82	whether anyone happened to publish the same idea before June 18, 1990.
83	That is to say, it depends on luck. This system is good for promoting
84	the practice of law, but not progress in software.</p>
85
86	<p>
87	Teaching the Patent Office to look at more of the existing prior art
88	might prevent some outrageous mistakes. It will not cure the greater
89	problem, which is the patenting of every <em>new</em> wrinkle in the use
90	of computers, like the one that Williams and others independently
91	developed.</p>
92
93	<p>
94	This will turn software into a quagmire. Even an innovative program
95	typically uses dozens of not-quite-new techniques and features, each
96	of which might have been patented. Our ability to use each wrinkle
97	will depend on luck, and if we are unlucky half the time, few programs
98	will escape infringing a large number of patents. Navigating the maze
99	of patents will be harder than writing software. As <cite>The
100	Economist</cite> says, software patents are simply bad for business.</p>
101
102	<h3>What you can do to help</h3>
103
104	<p>
105	There is a massive effort in Europe to stop software patents. Please
106	<!-- [Dead as of 2019-03-23] support <a href="http://stopsoftwarepatents.eu/">this
107	petition</a> for a Europe free of software patents, and --> see <a
108	href="https://ffii.org/"> the FFII web site</a> for full details of
109	how you can help.</p>
110	</div>
111
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113
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116	<div class="unprintable">
117
118	<p>Please send general FSF & GNU inquiries to
119	<a href="mailto:gnu@gnu.org"><gnu@gnu.org></a>.
120	There are also <a href="/contact/">other ways to contact</a>
121	the FSF. Broken links and other corrections or suggestions can be sent
122	to <a href="mailto:webmasters@gnu.org"><webmasters@gnu.org></a>.</p>
123
124	<p><!-- TRANSLATORS: Ignore the original text in this paragraph,
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126
127	We work hard and do our best to provide accurate, good quality
128	translations. However, we are not exempt from imperfection.
129	Please send your comments and general suggestions in this regard
130	to <a href="mailto:web-translators@gnu.org">
131	<web-translators@gnu.org></a>.</p>
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146	without talking with the webmasters or licensing team first.
147	Please make sure the copyright date is consistent with the
148	document. For web pages, it is ok to list just the latest year the
149	document was modified, or published.
150
151	If you wish to list earlier years, that is ok too.
152	Either "2001, 2002, 2003" or "2001-2003" are ok for specifying
153	years, as long as each year in the range is in fact a copyrightable
154	year, i.e., a year in which the document was published (including
155	being publicly visible on the web or in a revision control system).
156
157	There is more detail about copyright years in the GNU Maintainers
158	Information document, www.gnu.org/prep/maintain. -->
159
160	<p>Copyright © 1996-1998, 2001, 2023, 2024 Free Software Foundation, Inc.</p>
161
162	<p>This page is licensed under a <a rel="license"
163	href="http://creativecommons.org/licenses/by-nd/4.0/">Creative
164	Commons Attribution-NoDerivatives 4.0 International License</a>.</p>
165
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167
168	<p class="unprintable">Updated:
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170	$Date: 2023/12/31 13:39:45 $
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