Wednesday, December 07, 2005

Software patents – Obstacles to software development

Software Patents are patents that cover software ideas, ideas which you would use in developing software. That is what makes them a dangerous obstacle to all software development.
An Overview:
Intellectual property laws confer a bundle of exclusive rights in relation to the particular form or manner in which ideas or information are expressed or manifested, and not in relation to the ideas or concepts themselves.
Copyright may subsist in creative and artistic works (eg. books, movies, music, paintings, photographs and software), giving a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time.
A Patent may be granted in relation to a new and useful invention , giving the patent holder an exclusive right to commercially exploit the invention for a certain period of time (typically 20 years from the filing date of a patent application).
A TradeMark is a distinctive sign which is used to distinguish the products or services of one business from those of another business.
Patents, trademarks and designs fall into a particular subset of intellectual property known as industrial property.
Like other forms of property, intellectual property (or rather the exclusive rights which subsist in the IP) can be transferred (with or without consideration) or licenced to third parties. In some jurisdictions it may also be possible to use intellectual property as security for a loan.
Copyrights cover the details of expression of a work. Copyrights don't cover any ideas. Patents only cover ideas and the use of ideas. Copyrights happen automatically. Patents are issued by a patent office in response to an application. Patents cost a lot of money. It takes typically some years for the application to get considered, even though patent offices do an extremely sloppy job of considering. Copyrights last tremendously long. In some cases they can last as long as 150 years, where patents last 20 years, which is long enough that you can outlive them but still quite long by a timescale of a field such as software.Copyrights cover Copying.There can be defense to any accusation of copyright infringement.But such defence becomes irrelevant even though your idea is your own.
Patents are a kind of time-consuming lottery:
Like lotteries only a tiny fraction of patents actually bring any benefit to those who hold the patents.The first thing you are going to do after you have had an idea of what kind of program you are going to write is to deal with the patent system is find out what patents may cover the program you want to write. This is impossible because there are hundreds of thousands of patents and they are written in torturous legal jargon.So the scientific development for which ideas are building blocks just stall.From the patent holders point of view legal costs and patent maintenance costs will explode.
So they are three approaches that you can try:
Depending upon the situation we can apply one of these approaches.
(1) Avoiding the patent
Some times we can get around with out the patented feature in the software.Some times the idea that's patented will be so broad and basic that it basically rules out an entire field.
(2) Licensing the patent
The second possibility instead of avoiding the patent is to get a licence of the patent.But the patent holder has to offer it.You should be able to pay the price for that patent.For ex: Let us take Big B IBM.It has around 30000 patents.Suppose you(small company) hold a patent.What it does is make you cross-license?If you deny it will create some link between your patent and their existing patent.Then fears you of law-suit.Instead of all this hullabaloo you will cross-licence because its profit for both of you.Thus this cross-licensing has become a business.
(3) Overturning the patent in court
US patent office is so foolish that it accepts patents covering already existing ideas (non-patented),patents that are similar to existing patents(especially in the case of software because ideas are unlike objects which are easy to distinguish),patents that are obvious (to any one except US patent office :) ).The benefit of this loophole is if you can find solid prior art you can overturn the patent but the price involved will not be feasible.

Software field is based on incremental innovation.If it were one patent-one product, then these patents wouldn't obstruct the development of products.But when one product corresponds to many different ideas combined, it becomes very likely your new product is going to be patented by somebody else already.

As of now India rejects Software Patents.It's clear that they are not at all a good idea for a developing country like us.Refer Link

For clarity on patents in Indian context

Some questions I have?
The patent laws are different for different countries.One can patent an idea that is in USPO(US Patent Office), in EUPO (European Union Patent Office) of course if patent harmonization(common International patent laws) is done the scenario will be different.
Now Let us take the example of Public Key Encryption it's patent stalled the the development in the field of public key encryption itelf for 20 years.If a person in India gets the same idea and he creates a product based on it.Will that product be accepted Internationally?or Wont it be accepted in US only as there is a registered patent in USPO?
Now let us take the scenario of various service companies in India.While design we borrow ideas that are patents filed in USPO and use them specific to the domain.Since the development is in India its OK.If the client for whom the company developed the product is American can the patent holder sue the client?
Open Office guys did reverse engineering and found the way that open office supports MS Office docs.Will this be considered as patent infringement?

Source:-Talk given by Richard Stallman at University of Cambridge.


Pratap said...

I don't generally listen to whatever RMS says. Not because he is an open source guy or something, but somehow I hate to listen to him. When it comes to patents I think there two sides to the same coin. Whatever he says is true... Poorer nations will loose and richer nations will grow richer... But, he should also understand the point that whoever discovered/invented something does it with some reason... To earn money. Same is the case with companies who help researchers for that cause [to invent new things], money is the driving factor in 99% of the cases and in just 1% of the case ppl think it the RMS way [for the well being of the world]. Without the monetary incentive most of the so called innovations would not have been possible in this world. Now argument can be that before someone discovers a method and patents it, the law already exists... but it is this person who discovered it who finally made it known to the world... so making money by filing patents is a decision left to the researcher and the company themselves. If he/it wants to live the RMS way they will file a patent by will not demand money on that. If they do want money out of it then they will make money, why should one stop them from doing so? There is nothing called as obstacles to development... Did software stop developing because windows is not free and did ppl stop eating because food is sold in the markets... Same is the case here. If patents are stopped in software, then music should not be copy righted... and even encyclopedia's should not be copy righted... These things exist everywhere and it is best to ignore them and stop thinking the way RMS thinks about it :).

Shadab said...

I agree with you that money matters.I am not a RMS stooge.Take our IIIT projects.Most of them are re-using of existing techniques.If some one patented them will you dare to use them for the fear of paying royalty?
Patent is all about ideas.Ideas have no physical form.The same idea may come to you before me.The very fact that I hurried and patented it before you makes you handicapped although you have the idea.The joy you gain by getting the idea will just tumble down.You might have experienced the joy when you get an idea irrespective of whether it is present or not.These patents are stealing that joy.Patents should not be on ideas(abstract forms).
Read the paragraph starting sentences are"
Sometimes the idea that's patented will be so broad and basic that it basically rules out an entire field. For instance, the idea of Public Key Encryption which was patented in the US. The patent expired in 1997. Until then, it largely blocked the use of Public Key Encryption in the US. A number of programs that people started to develop got crushed. They were never really available because the patent holders threatened them. Then, one program got away. The program PGP, which initially was released as free software. Apparently, the patent holders by the time they got around to attacking, realized they might get too much bad publicity. So they imposed restrictions making it for non-commercial use only, which meant it couldn't catch on too much. So they greatly limited the use of Public Key Encryption for a decade or more. There was no way around that patent. There was nothing else you could do like that......." at