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You are here: Home > Blogs > Community > The threat of software patents
persists
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The threat of software patents persists
by Free Software Foundation Contributions -- Published on Aug 04, 2021
05:04 PM
Contributors: Panos Alevropoulos
The threat of software patents persists
Read this page in Spanish. Guide to Translating Web Pages.
At the Free Software Foundation (FSF) we have reported extensively on
many issues concerning user freedom. In this article, we will
reintroduce a problem that has plagued the free software community for
many years: the problem of software patents. In the past, we had
several successful campaigns against them, and people have mistakenly
assumed that the threat has gone away. It has not. Patents have
steadily been dominating the software sector, and the situation is
bound to get worse.
Before we delve into the complexities of this issue, it's important to
know the basics: a patent is a legal tool that gives its owner the
right to prevent others from using an invention in any way for a
limited period of years. A software patent is a patent that applies to
software.
What follows will answer a number of questions: what software patents
are; what their history is; what their legal status is today; what
problem is posed by their enforcement; how our past successful
campaigns were not enough to eliminate them; and finally, how you can
help us fight against them, today. Unfortunately, for a proper
explanation we ought to get a bit technical, but please bear with us.
A brief history of software patents
First, of all, the concept of software patents has been around for a
long time (even since the 1960s), but the debate on the patentability
of software became widespread when the Free Software Foundation was
founded in the 1980s. While the FSF does not take a position on the
impact of patents in other spheres, we consider them to be both
unethical and counterproductive in the field of software. One of the
most worrying effects of software patents is the way they prevent new
software from being written, yet even if this weren't the case,
software patents would still be an inherently unethical restriction on
individual freedom. Even in the 1980s, it was clear that the magnitude
of the problem was such that Richard Stallman founded the (now defunct)
League for Programming Freedom in 1989, an organization aiming to ally
all developers (including those of proprietary software) against
software patents.
Today, few people are aware of the dangers behind software patents, and
how the world is affected by them. To give a quick overview, in the US,
patents are handled by the federal courts, while Europe has different,
independent national laws on patents. Recently, however, the adoption
of the Unitary Patent and the Unitary Patent Court are bound to replace
regulations of individual EU member states with ones that are valid for
the entirety of the EU, making (software) patent enforcement in Europe
drastically easier. Globally, each country has unique patent laws and
the patentability of software may differ considerably. But the general
picture is that software patents are continuously granted.
It is crucial to emphasize that software patents are enforced without
ever going through a process of direct approval by the public. In 2002,
a proposal was made to legitimize software patents in the EU, but it
was defeated in the European Parliament by an overwhelming majority of
648 to 14 votes, thanks in part to a massive effort by the free
software movement and its allies. The success of that campaign
demonstrated that people are able to change the course of proposed
life-affecting policies, provided that they are included in the
process, and properly informed. Unfortunately, the course of events
both then and now also proves that democracy requires the utmost
vigilance, and any period of relaxation works against the will of the
people. Despite the defeat of the software patent directive in 2002,
the software industry has successfully pushed for new policies that
will favor it. This is where the aforementioned Unitary Patent and
Unified Patent Court come into play, since it is well known that the
European Patent Office has a vested interest in expanding patent
dominance in all fields, particularly in the software sector.
Software patents constitute a critical attack on user freedom
The issue of software patents is a particular one. To understand the
extent of patents, it is necessary to distinguish patent law from
copyright law. While copyright covers the original expression of an
idea (for example, software and literary works), patents cover
inventions. There is an important difference here. Copyright is applied
automatically, whereas patents require a formal registration process.
Also, in the case of patents, patent examiners have to judge which
patent application falls within the criteria of a patent-eligible
invention. This task can be very complicated, since the range of
technical claims is by nature extremely wide. So, the question is: can
software be regarded as a patent-eligible invention?
We believe it cannot. Software should not be patentable, because it is
inherently composed of mathematical logic, which is excluded from
patentable subject matter. In practice, the effects of software patents
are so restrictive that they affect the development of all kinds of
software, not just free software. While the most common argument for
patents is that they promote innovation, the opposite is true more
often than not. Every time a programmer develops new software, it is
almost inevitable that they will infringe not one, but many patents.
One reason for this is that patent offices around the world have
applied particularly lax criteria for software patent registration.
Another reason has to do with the nature of software on general purpose
computers. As such, developers walk into an invisible patent minefield,
since no one can practically be aware of all the patents in the world.
Naturally, one would ask: is this a problem just for software patents
or patents in general? The answer is not so simple. Some people may
have arguments against patents in general, but the special case of
software patents is in fact widely acknowledged. In an apt article,
Richard Posner pointed out that in order to define an invention under
patent law, we must evaluate both the cost of inventing and the cost of
copying. At one extreme, we have the pharmaceutical industry, which has
very expensive production costs, but very cheap reproducibility of its
products, and claims to be financially dependent on patents. At the
other extreme, we have the proprietary software industry, which already
uses copyright as a means to curtail user and developer freedom, and
which has now roped in patent law to assist them in that. Software,
with its inexpensive production costs, has never been financially
dependent on patents: in the matter of fact, not only is there more
than adequate proof that software can and does progress without
patents, but patents can also actively prevent that progress from
happening.
Battles were won, but the war is not over
So how are software patents issued? Although at a high level, patent
laws around the world regard software as abstract, non-novel ideas, and
thus not patentable, lawyers are able to fool judges with clever
wording of their technical claims.
For example, in Europe, proponents of software patents -- mainly
multinational corporations and patent lawyers -- avoid using the term
"software patent," because they know it reveals their intentions.
Article 52 of the European Patent Convention explicitly forbids patents
for "programs for computers," but only when inventions are regarded "as
such." The European Patent Office interprets the "as such" as
nullifying the exclusion. As a result, software patents are issued in
Europe despite the rejection of the relevant directive in the past.
Similarly, in the US, the term "computer-implemented invention" has
become rather popular, but its definition is ambiguous on purpose.
Despite Supreme Court cases Alice and Bilski being regarded as having
restrictive rulings on the patentability of software, the judges chose
not to clear the legal landscape. Today, there are still many court
case inconsistencies, and the US Patent and Trademark Office continues
to grant software patents.
We can only strengthen our cause with your help
If everything above sounds confusing, that's because it is. The issue
of software patents is very complicated, and most people have never
even heard of the term. In any case, the end result is that software
patents are still being issued. In this article, we have only scratched
the surface in regard to how software patents affect us. If you are
unfamiliar with software patents, you can learn more at our End
Software Patents wiki. If you are familiar with the issue, please
consider contributing to the wiki. Every contribution helps.
In a world where multinational corporations have unlimited political
influence, while citizens are deprived of the necessary democratic
mechanisms to control them, the future is bleak. At the same time, the
acceleration of technological progress in the recent years has led to
an astounding ubiquity of software in all fields of life. With software
patents being granted in every digitized sector, the significance of
user freedom increases exponentially.
Consider this: when we were kids, we looked forward to the future with
eager anticipation. Most of us imagined an automated world, with robot
servants and flying cars. Growing up, many of us regrettably realized
that the dominance of proprietary software has been turning all these
futuristic ideas into an Orwellian universe. Proprietary software
threatens user freedom. But software patents affect us to an even more
fundamental degree: they limit our very ability to write software that
respects user freedom, undermining our freedom of expression.
If we do not act, the future is bleak. To shape a free world, we must
cooperate. Our End Software Patents campaign, including its wiki, was
created years ago, but we are now in the process of renovating it. If
you believe our cause is just, you can join us. Whatever your
background, there are many ways to help: from educating others about
this issue and participating in discussions, to influencing your
country's policies, to contributing to our wiki with new information.
End Software Patents has a rich past, such as submitting amicus briefs
to courts, creating the Patent Absurdity documentary, and featuring
almost 650 wiki entries, as well as dozens of articles. If you're
interested in the campaign and would like to get involved, you can join
our effort in the following ways:
* Donate to End Software Patents
* Contribute to our End Software Patents wiki, at
https://wiki.endsoftwarepatents.org/
* Subscribe to our [esp] discussion list
* Sign up for announcements relating to the End Software Patents
campaign
* Join our IRC channel at #endsoftwarepatents on Libera.Chat
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