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<title>Patent Reform Is Not Enough - GNU Project - Free Software Foundation</title> |
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<div class="article reduced-width"> |
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<h2>Patent Reform Is Not Enough</h2> |
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<div class="thin"></div> |
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|
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<p> |
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When people first learn about the problem of software patents, their |
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attention is often drawn to the egregious examples: patents that cover |
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techniques already widely known. These techniques include sorting a |
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collection of formulae so that no variable is used before it is |
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calculated (called “natural order recalculation” in |
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spreadsheets), and the use of exclusive-or to modify the contents of a |
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bit-map display.</p> |
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|
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<p> |
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Focusing on these examples can lead some people to ignore the rest of |
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the problem. They are attracted to the position that the patent |
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system is basically correct and needs only “reforms” to |
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carry out its own rules properly.</p> |
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|
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<p> |
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But would correct implementation really solve the problem of software |
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patents? Let's consider an example.</p> |
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|
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<p> |
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In the early 90s we desperately needed a new free program for |
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compression, because the old de-facto standard “compress” |
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program had been taken away from us by patents. In April 1991, |
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software developer Ross Williams began publishing a series of data |
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compression programs using new algorithms of his own devising. Their |
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superior speed and compression quality soon attracted users.</p> |
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|
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<p> |
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That September, when the FSF was about a week away from releasing one |
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of them as the new choice for compressing our distribution files, use |
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of these programs in the United States was halted by a newly issued |
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patent, number 5,049,881.</p> |
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|
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<p> |
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Under the patent system's rules, whether the public is allowed to use |
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these programs (i.e., whether the patent is invalid) depends on |
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whether there is “prior art”: whether the basic idea was |
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published before the patent application, which was on June 18, 1990. |
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Williams' publication in April 1991 came after that date, so it does |
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not count.</p> |
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|
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<p> |
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A student described a similar algorithm in 1988-1989 in a class paper |
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at the University of San Francisco, but the paper was not published. |
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So it does not count as prior art under the current rules.</p> |
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|
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<p> |
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Reforms to make the patent system work “properly” would |
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not have prevented this problem. Under the rules of the patent |
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system, this patent seems valid. There was no prior art for it. It |
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is not close to obvious, as the patent system interprets the term. |
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(Like most patents, it is neither worldshaking nor trivial, but |
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somewhere in between.) The fault is in the rules themselves, not |
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their execution.</p> |
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|
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<p> |
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In the US legal system, patents are intended as a bargain between |
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society and individuals; society is supposed to gain through the |
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disclosure of techniques that would otherwise never be available. It |
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is clear that society has gained nothing by issuing patent number |
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5,049,881. This technique was going to be available anyway. It was |
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easy enough to find that several people did so at around the same |
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time.</p> |
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|
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<p> |
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Under current rules, our ability to use Williams's programs depends on |
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whether anyone happened to publish the same idea before June 18, 1990. |
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That is to say, it depends on luck. This system is good for promoting |
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the practice of law, but not progress in software.</p> |
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|
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<p> |
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Teaching the Patent Office to look at more of the existing prior art |
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might prevent some outrageous mistakes. It will not cure the greater |
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problem, which is the patenting of every <em>new</em> wrinkle in the use |
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of computers, like the one that Williams and others independently |
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developed.</p> |
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|
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<p> |
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This will turn software into a quagmire. Even an innovative program |
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typically uses dozens of not-quite-new techniques and features, each |
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of which might have been patented. Our ability to use each wrinkle |
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will depend on luck, and if we are unlucky half the time, few programs |
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will escape infringing a large number of patents. Navigating the maze |
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of patents will be harder than writing software. As <cite>The |
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Economist</cite> says, software patents are simply bad for business.</p> |
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|
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<h3>What you can do to help</h3> |
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|
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<p> |
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There is a massive effort in Europe to stop software patents. Please |
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<!-- [Dead as of 2019-03-23] support <a href="http://stopsoftwarepatents.eu/">this |
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petition</a> for a Europe free of software patents, and --> see <a |
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href="https://ffii.org/"> the FFII web site</a> for full details of |
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how you can help.</p> |
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There are also <a href="/contact/">other ways to contact</a> |
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