Software Patents and Literary Patents

On July 6, 2005, the European Parliament will vote on the vital question of whether to allow patents covering software--a policy that would restrict every computer user, and tie software developers up in knots.

Many politicians may be voting blind; 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 instance, when I publicly asked Patrick Devedjian, then Minister for Industry, how France would vote on the issue of software patents, Devedjian responded with an impassioned defense of copyright law, praising Victor Hugo for his role in the adoption of copyright.

Those who imagine effects like those of copyright law cannot envision grasp the real effects of software patents. We can use Victor Hugo as an example to illustrate the difference.

A novel and a modern complex program have certain points in common: each one is large, and implements many ideas. So let's follow the analogy, and suppose that patent law had been applied to novels in the 1800s; suppose that states such as France had permitted the patenting of literary ideas. How would this have affected Victor Hugo's writing? How would the effects of literary patents compare with the effects of literary copyright?

Consider the novel, Les Misérables, which Hugo wrote. Since he wrote it, the copyright belonged only to him--nobody else. 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 it only restricts copying. Hugo had not copied Les Misérables, so he was not in danger.

Patents work differently. Patents cover ideas; each patent is a monopoly on practicing some idea, which is described in the patent itself. Here's one example of a hypothetical literary patent:

If such a patent had existed in 1862 when Les Misérables was published, the novel would have infringed all three claims, since all these things happened to Jean Valjean in the novel. Victor Hugo could have been sued, and if sued, he would have lost. The novel could have been prohibited--in effect, censored--by the patent holder.

Les Misérables would have infringed that patent too, because this description too fits the life story of Jean Valjean. And here's another hypothetical patent:

These three 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 three patent holders could have sued Victor Hugo. Any one of them could have prohibited publication of Les Misérables.

through the name "Jean Valjean", but at least this patent would have been easy to avoid.

You might think that 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 a patent on accepting payment via credit cards. These patents would be laughable if they were not so dangerous.

Other aspects of Les Misérables could also have run afoul of patents. For instance, there could have been a patent on a fictionalized 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 such as Les Misérables. All the patent holders would say they deserved a reward for the literary progress that their patented ideas represent, 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:

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 required to write a program 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 today.

Given these broad patents, Victor Hugo would not have reached the point of asking what patents might get him sued for using the character of Jean Valjean, because he could not even have considered writing a novel of this kind.

This analogy can help non-programmers see what software patents do. Software patents cover features, such as defining abbreviations in a word processor, or natural order recalculation in a spreadsheet. Patents cover algorithms that programs need to use. Patents cover aspects of file formats, such as Microsoft's new formats for Word files. MPEG 2 video format is covered by 39 different US patents.

Just as one novel could infringe many different literary patents at once, one program can infringe many different patents at once. It is so much work to identify all the patents infringed by a large program that only one such study has been done. A 2004 study of Linux, the kernel of the GNU/Linux operating system, found it infringed 283 different US software patents. That is to say, each of these 283 different patents covers some 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 authorizes patents covering software techniques. (See http://swpat.ffii.org/lettres/cons0406/text/index.html.) Its backers claim that the requirement for patents to have a "technical character" will exclude software patents, but it will not. It is easy to describe a computer program in a "technical" way: The Boards of Appeal of the European Patent Office said (Case T 0258/03; http://legal.european-patent-office.org/dg3/pdf/t030258ex1.pdf):

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 programs (http://swpat.ffii.org/papers/europarl0309/cons0401/tab/index.en.html).

The way to prevent software patents from bollixing software development is simple: don't authorize 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.

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