YAFFS

Here is the text of a talk given by Wookey (Chief Nerd at Aleph One) to a meeting in Cambridge of Developers, Businesspeople and IP practioners, on June 5th 2003.

---

Introduction

Hi, I'm Wookey, Chief Nerd at Aleph One, a small software and hardware producer in Cambridge. We do both free and proprietary software, these days largely around embedded systems and ARM-linux.

I've been mugged into speaking against software patents this evening. Now I don't claim to be an expert - A few months ago I know nothing about this subject but after hearing Richard Stallman speak at the Cambridge Computer Lab, my interest was piqued, and with some reading the web and going to a conference about it in Brussels (Brussel/Bruxelles) I think I've now got a reasonable grasp of the arguments. It's a big subject but I'll try and sumarize the main points here.

I'm nominally representing the FFII viewpoint here. They are a European (German-based) organisation campaigning for a free information infrastructure. They have amassed an amazing amount of information on their website.

The basics

Patents are a bargain between state and public - a monopoly granted in exchange for publication of information. This is intended to preserve info so it doesn't get lost and to avoid the appropriation of inventions.

We've got very used to them, But they are not a free market or a right or a natural state of things and need to be justified in a given sphere. Most people on the street will say 'yes patents are a good thing' if asked, but at least in the sphere of software, that attitude needs to be challenged and some evidence produced for why.

First lets be clear about what is meant by being against 'software patents'. This refers to things which are just software; it doesn't mean that you can't patent anything with some software in it. So computer-controlled industrial process is patentable, but JPEG compression is not.

Copyright

Copyright already exists for software and is well-suited. It stops wholesale copying of your implementation, but it doesn't stop someone making something that does the same job. To 'copy' your program someone will have to re-implement it - that's about the same amount of work as it took you, which is fair enough, and you'll have a head start of however long it took. By the time they've caught up you'll be on the next verion. Innovation, copyright and trade secrets (for propietary software) are all that are needed to protect software in the market.

Patent lawyers will say copyright is only for poetry and the like, but in fact it works quite well for music scores, music sound, pictures, films etc.

The biggest problem with patents is uncertainty: You can easily run your business so you don't trip over copyright - just don't plagiarise. But it's impossible to run it such that you are safe from unexpected attack by patent lawyers. Patents are written in a special language which even experts in a field find difficult to understand. In order to decide if you infringe a patent you have to ask a patent lawyer, and they generally charge several thousand pounds/dollars/euros per patent for an opinion. Examing thousands of patents every year to check whether you infringed is impossibly expensive and/or time-consuming for most SMEs, so they don't do it. In practice every day you write code you probably infringe a patent or two, so one day someone will turn up telling you you infringed. It literally makes software writing into a minefield - suddenly one day a patent mine will blow up under you or your company - and the costs could easily destroy it, whether or not you really did infringe - 2 or 3 such attacks will almost certainly be fatal.

In practice patent lawsuits generally cost about half a million dollars. Those involved in real cases said that even when the accusations were obviously frivolous, it was still cheaper to just pay up than go to court and try to prove them wrong or demonstrate prior art. And do you realise that if you had invented the relevant technique prior to the patent then that might get you off the hook, but if it wasn't published then the patent remains valid and others can be hassled with it. None of this helps companies write software and innovate. If they play the game they need to employ some lawyers and spend a lot of engineer time writing patent applications. If they don't they will one day find that they got big enough to sue.

…

The existing software market isn't broken - software and software companies developed just fine without patents (Microsoft never had any patents before it got be huge, for example), so the premise that they are necessary to encourage investment and innovation is clearly wrong. No-one had any before about 1982 and the floodgates didn't open until around 1994, and plenty of software got written. To change the software legal environment in this fundamental way needs some very good reasons and evidence. And that evidence simply doesn't exist. You can find lots of legal argument promoting the idea but almost no economic arguments or studies.

Patent lawyers always talk about this subject from legal perspective, not from social or economic - they believe all patents are are good thing per se and don't even consider the idea that they might not be. We, and MEPs, must consider the overall economic, social and innovation effects to see if they really are a good idea.

The classical idea of patents is that they protect individual inventors with great ideas from large corporations, and whilst they may work occaisionally, in practice they seem to do exactly the opposite. Only large corporations can absorb the costs and get lots of software patents and use them to stifle competition from innovative startups. It's largely big corporations, lawyers who make a living from them, and parasitic companies that use patents for extortion but never invent anything, that promote software patents. The vast majority of software developers and SMEs are not in favour of them. 140,000 signed the FFII petition for example.

The only evidence that does suggest SMEs benefit from patents in the US includes in its definition of SMEs companies which do no research or development of their own at all - so-called 'patent-trolls'. They just buy up patents from defunct companies and then go round suing other companies which are making real products. Is this the sort of development we wish to encourage?

Patenting works reasonably well where one patent corresponds to one product, as in chemistry and pharmaceuticals. But every program of any significance has thousands of ideas in it, and thus can be affected by thousands of patents. Avoiding them all becomes increasingly difficult as more and more patents on fundamental building-blocks are issued.

The US is a handy test case, being some 4 or 5 years ahead of us in software patent terms, and the evidence clearly shows that patents cause plenty of problems. The longer the patent-grab game goes on the worse it gets. At the recent FTC hearings company after company said the situation was out of control and not helping at all. The FTC studies should be published in August and it would be a very good thing if the EU could be persuaded to wait till that evidence is in before completing the directive.

Suggestions

"Trviality is the problem": just raise the non-obviousness requirement. The examination (of patent applications) problem is insoluble - There are so many areas of expertise needed that it is now impossible to have patent examiners proficient in every sphere of software, so trivial patents will always get through. The economics of patent offices also drives this process, because they want to give value for money to their customers.

Consider existing patents on software to see how trivial they are. Progress Bar, electronic shopping cart, Dynamically extensible webserver (CGI scripts), controlling one computer from another (RPC, telnet, client-server), displaying objects in overlapping windows.

"America has patents - so we must too". This is a barmy argument. The EU currently has an advantage because European companies can write software without tripping over patents all the time. They can still get US patents if they want to use them in the US, but are safe at home. Americans have the opposite problem.... Most of the EU software patents are owned by US and japanese corporations - just look at the list of applications for recent EU software patents. Making them legal would simply hand a significant chunk of the EU software business to foreign companies.

Software patents are currently illegal in Europe according to the European patent convention, and have been since at least 1973. The legislation says quite clearly that ideas, art, algorithms and computer programs as such are not patentable. So how come we have 30,000 of them already? It's because patent lawyers at the European Patent Office (EPO) have twisted the words of the law out of all recognition, essentially saying a 'computer program as such' is not the same as a 'computer program' and that because software runs on hardware which has a 'physical effect' (gets hot, uses electricity') - it can be patented.

This 'physical effect' logic is flawed because how the hardware behaves is irrelevant to software developers - it's like saying that music should be patentable because playing it in a stereo system produces physical effects in the loudspeaker. Developers don't need to understand the hardware to write software in the same way that you don't need to know how your engine works in order to drive your car.

This so of logic is why you have to be really paranoid when considering the wording of legislation. The MEPs say they don't want software patents, or business methods, but then write legislation that will allow unlimited patentability of ideas (business methods in computer program terms) either through ignorance or mendacity. The existing 1973 text is pretty clear - if that doesn't work we have to be astonishingly careful in the wording of new law.

Drawing the line

Allright, so how do we draw the line?
This is quite a difficult thing to think about clearly.

A computer is a turing machine - programs are logically equivalent to maths, and that is why they should remain unpatentable. As soon as you allow algorithms to be patented, then ideas and everything in human endeavour follows, including voting systems and social organisation methods.

The question boils down to the two sides of the argument:

1. If physical processes are patentable, why should it make any difference whether they run on special hardware or on general purpose hardware?
2. If rules of organisation and calculation are not patentable why should it make any difference whether I run them in my head, with pencil and paper or with today's normal tool - a universal computer?

The 2nd argument is right because the economic argument comes in here: abstract ideas, regardless of their applicability, are produced without experimentation cost, applicable to an infinite number of problems and are replicated at zero cost, with no overhead to which patent costs could be added. This is the right place to draw the line.

Ideas should not be patentable. The FFII proposals distinguish between mind and matter and invention and implementation. In the real world making complex systems that work is difficult - in software it is easy due to the absence of physical effects: your for loops will not overheat and melt a nearby function, neither will an array cause electrical interference in your hash function. So patents are applicable to the industrial world of 'controllable forces of nature', not to the world of algorithms and data processing.

There will always be borderline cases and FFII have set up a benchmarking suite of example patents against which legislation can be tested. Software is large collection of obvious things. Like a Recipie, or symphony. A cook takes a number of (obvious) things and combines them in an intersting way, yet no-one thinks that patenting a new way of slicing tomatoes is a good idea, or that whoever thinks of a chord first should be able to prevent anyone else using it.

Standards

Patents are making it increasingly difficult to set standards. JPEG was specifically created as a patent-free standard, even forgoing a few percent of speed to ber sure of avoiding existing patents. But now, 15 years later, a patent-troll has bought a relevant patent and is enforcing it. They got 22 million dollars out of a couple of Japanese companies last year, and when the president of the JPEG committee said that there was prior art they accused him personally of 'patent libel'.

The MPEG2000 standard is probably already dead in the water due to arguments about patents. Anything that does legalise them must have strong safegards to stop things like the JPEG hijacking. There can be agreements amoungst those involved in the discussions but it's very difficult to do anything about people who don't join in and wait untill afterwards to come and sue. 'Use it or lose it', and interoperability defence.

Free software

Free software has both advantages and particular problems with respect to patents. The fact that it is all published is a useful 'prior art' defence. It also makes it very easy to see if there has been an infringement so it's authors are particularly open to being sued. There is no mechanism to pay for licenses so it cannot use any patented algorithms or features. An interoperability clause is essential to allow free software to interoperate, and even 'royalty-free' patent agreements in standards could cuase problems as they only allow using the code for the specified purpose, not anything else anyone might come up with later.

It seems to me that 'Independent invention' should be a sufficient defence.

In principle, a much shorter period for patents (3-5 years?) would help reduce the bad effects, but this is legally extremely difficult to do. The various international agreements (TRIPS) say that patents must be 20 years for all fields of endeavour. This is clearly inapropriate for software - imagine having to write all your software using only ideas from when the ZX-spectrum was the state of the art. 20 years is an eternity when most software products have a life of around 18 months. This 20 yrs-or-nothing aspect is actually a good argument for nothing.

One argument of the pro-patent lobyists is that we can't cause trouble with the EPO or pass laws that would invalidate existing patents. This is simply caving in to the EPO who have pushed the current status quo miles beyond what the law states. It's not our fault that clarifying the situation to a sensible state will mean a lot of patents have been issued on very shaky ground. They are mostly worthless anyway and should be treated as such.

So far as I can see software patents are a bad thing and have almost no overall benefit to society or developers. In the long term I think they will have very bad effects. I don't want to sound too much like some kind of anti-globalisation eco-nutter, but they do seem to be little more than an effective tool to allow large businesses and lawyers to supress competition from small ones and individuals, and to move fundamental ideas and algorithms from the public domain to private ownership. However powerful forces - the ones who stand to benefit from this legislation, disagree with this and are largely getting their own way in legislation-land at the moment. So, if you don't want to see everything under the sun patented, then you need to say so very clearly to your representatives right now.