Why the patent system doesn't play well with software: If Eolas went the other way

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If we must have software patents, at least use the same rules


Everyone take a deep breath: it seems we've had a moment of sanity in the patent wars. Last week, a jury invalidated the dangerous Eolas patents, which their owner claimed covered, well, essentially the whole Internet. The patents were originally granted for an invention that helped doctors to view images of embryos over the early web. A few years later, smelling quick cash, their owner insisted that it had a veto right on any mechanism used to embed an object in a web document. Really? The patents are obvious—both now in 2012 and back in 1994, when the first one was filed. Thankfully, a jury realized that and did what should have happened years ago: it invalidated these dangerous patents.

That's the good news. The bad news: it came after the patents already caused plenty of damage. Companies large and small have taken licenses from Eolas rather than pay millions to fight in court. Many, such as Tim Berners-Lee (who testified during trial), warned about the dangers of the Eolas patents:

The existence of the patent and associated licensing demands compels many developers of Web browsers, Web pages, and many other important components of the Web to deviate from the fundamental technical standards that enable the Web to function as a coherent system.

We couldn't agree more, but let's go a step further. What the Eolas patents make clear is that the system isn't working. We've been saying it for years, yet both Congress and the courts have failed to fix the problem. In the now infamous Bilski case, the Supreme Court gave the green light to business method patents, and, consequently, to software patents. But the patent system, which is largely a one-size-fits-all program, simply stops making sense when we start to talk about software.

"Software patents" should be an oxymoron

In order to understand why software patents don't make sense, you have to understand a little bit about the patent system. The Constitution gives Congress the power

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

This single sentence represents an important bargain: when someone invents a novel invention, the government grants the inventor a 20-year monopoly to exploit that invention. At the end of those 20 years, the inventor dedicates that invention to society, allowing others to practice it and build upon it. Traditionally, this monopoly was intended to provide an important incentive, especially where, as with pharmaceuticals, companies have to build factories and laboratories, hire workers, and endure rounds of testing at the FDA before they can sell a drug.

Software often does not require that kind of investment—often all you need is a coder and a computer. Even complex programs don't require 20 years of exclusivity to recoup their investment. We've also seen time and again that software developers don't need patent incentives to create new and great programs. Take, for example, companies like Google and Twitter; neither relied on software patents to grow its early business.

It's also clear that 20 years is too long to protect software inventions. Many who obtain patents—those who may feel obligated to appease venture capitalists or who get patents for defensive purposes, for example—quickly learn that technology moves so quickly that it's often been replaced or vastly improved upon by the time the patent is granted. And it's expensive to get an application through the patent office—costs and fees for "complex software" can range well into the $10,000s! So what do you think happens when a company spends all that money getting a patent and then finds out its product is no longer popular? Enter the patent troll, who buys the antiquated patent and starts suing (more on that below).

Further, software is fundamentally situated as a building block technology. You write some code, and then I improve upon it (the open source folks already have this figured out). But if your code is covered by a 20-year patent, I can't even test my improvements until that patent expires.

Software patents benefit only lawyers, not inventors

Software patents are nearly five times as likely to be litigated as other patents. In fact, lawsuits surrounding software patents have more than tripled since 1999. What does that mean? It means that if you do business in America, and it involves any even arguably patented software, you'd better have a serious legal budget. Take, for instance, Spotify, the popular music streaming service that came to the States in late 2011. A few weeks after it launched—boom!—Spotify is facing a patent lawsuit (the kind of suit that will easily cost each side millions of dollars). Not only is this bad for U.S. businesses, but it drives innovators out of the country, which is bad for all of us, not least of all because it sends jobs abroad. Increasingly, patents serve as a dangerous tax on innovation in America, especially when it comes to software. And domestically this means that instead of helping grow R&D or engineering departments at software companies, software patents increasingly help grow legal departments.

Software patents harm innovation

So what do you do if you're a small inventor, working in your free time on coding new software, and all of a sudden you're threatened with a patent suit? Unfortunately, time and again, we hear of folks closing up shop. When part-time inventors without financial backing or tinkerers in their free time stop inventing the next Facebook or tomorrow's Twitter, we're all worse off. And right now, that's the threat software patents pose.

Now, back to Eolas. What would have happened if the jury went the other way? Virtually every website that allows embedded objects, such as images or video, for example, (in other words, nearly every website) would have to pay up. Sadly, this is the norm and not the exception. The jury in this case got the information it needed, but not every defendant can afford to fight, much less inspire Sir Berners-Lee to testify. Dangerous, overbroad software patents have become a tax on innovation that cannot stand. Software patents are harming innovation and our economy. It's time to rethink our policies.

The Electronic Frontier Foundation is committed to defending innovation and fixing the problems with software patents in the long-term. That's why we at the EFF will soon be launching our new campaign around software patents, Patent Fail: In Defense of Innovation. Stay tuned.

This post originally appeared on the Electronic Frontier Foundation website and is re-posted with permission.

Julie Samuels is a Staff Attorney at EFF, where she focuses on intellectual property issues. Before joining EFF, Julie litigated IP and entertainment cases in Chicago at Loeb & Loeb and Sonnenschein Nath & Rosenthal. Prior to becoming a lawyer, Julie spent time as a legislative assistant at the Media Coalition in New York and as an assistant editor at the National Journal Group in D.C.


All software patents are illegal. All software are algorithms. This is proven scientific fact, the work of Alan Turing and John von Neumann. And patent law clearly states that algorithms cannot be patented. When is the American justice system going to start obeying the law?

@Julie and Shawn.
I agree with what both of you said in spirit. However none of us like activist Judges when our favorite topics are stopped on. Julie as a lawyer you might confirm for me that what the High Court did with Biliski was set the issue in the lap of Congress. Yes Congress as not even attempted in any way that I know of to take this issue up as far as I know. But it is their job not the that of the Justice system. I am glad when I am not stepped on by activist and out of order rulings (illegal) and as a matter of law I am also glad that others who I oppose are not stepped on as well.

Why can't I have patents that cover the inhaling of breathe (including oxygen) into an organism and the conversion of stored sugars into available kinetic energy?

I think a small pause for celebration is in order. It is a victory, albeit a small one, but a victory nonetheless. You can also add speculators as a community that profits from patents, sadly humanity as whole derives little benefit.

I see two further areas of damage from patents in software. The first is the lock-in to a single provider for the patented solution, which goes further when additional capability or functionality is built around or on top of that solution. Having bought into the proprietary and patented solution a user is compelled to only employ their additional proprietary solutions especially if integrated with the patented one. All too often the additional capability or functionality is sub par compared to competitive offerings, but the dependency on the proprietary patent prevents that choice.

The second area is covered to a degree in your post, but benefits from repeating. One thing we have learned over the course of the past decades is that there is no such beast as a perfect software solution. There are always bugs, either inherent in the original code, or introduced a later date by patch or human error. Only the patent owner can repair and improve their code, and furthermore is restricted from taking advantage of efficiencies and capabilities produced by other patent holders. Non-patented software, especially software that is open and enjoys the collaborative efforts of meritocratic developers is often in my experience much higher quality that proprietary alternatives.

One of the saddest things to me about software patents is that you don't have to write a single line of code to get one. A friend of mine works for a company that has many hardware and software patents. He had an idea one day (3 actually) talked with the companies lawyers, they found out nobody had patented what he thought of, and pretty soon, the company had three new patents.
He said not a line of code was written for those patents for over 10 years.

When I wrote "Paul A Norman on 21 Feb 2012" I was thinking along the lines of your comment Troy Dawson: "you don't have to write a single line of code to get one".

So many things that are patented are actually fundamental to the operation of any kind of application in fact - so fundamental that nothing can work with out them. Just as well they are not all enforced!

For example that previous attempt to patent the 'idea' of human interfaces with screen objects - which determined down to an attempt to patent the humble 'mouse click'. (Was successfully carried out in some countries like New Zealand.)

It seems that there needs to be a growing awareness of what is fundamental to human usage of hardware and basic principals of software that are, as I previously suggested, breathing and life itself to any technology.

Patenting grew out of too many ideas akin to claiming a gold mine in a wild west desert wilderness - and needs to be brought back to civilisation, and onto a considered philosophical base that is conducive to continued growth of the industry and what is useful to the widest number of human beings.

It seems to me in all realms of human behaviour, that essentially any attempts to censor, regulate, or in the case of patents - officially register 'human thought' - always lead into paths, the consequences of which need to be fully explored, before enshrining in strong laws and penalties.

To say "I have managed to register this thought first - and that means you shall not think it, and implement it, or else" - that needs to be very carefully reviewed to get a better balance.

If someone has registered and taken to market an idea - actually implemented it in some demonstrably public way - then give a measure of protection for a season, let them profit from their efforts.

But to embargo all other activity, just because someone else has only 'thought', and done nothing with their thought but register it - that is not fully in balance - maybe a shorter period of protection for just thinking the registered thought, to give time to take it to market or implementation of some wider kind, and a consequent protection of the working idea for a season?

But if no action is taken on the thought in an agreed development time, open it to the public?

So how do we stop this silliness? You are right on with your insights, but as I see it there is no easy way for the large group of us who are extremely frustrated by our current patent laws, to change them. I tire of watching parasitic attoneys and trolls feed off of this broken system. I tire of large companies holding everyone in the industry hostage to obvious ideas or even good ideas that don't deserve anything more than a compliment for thinking of them. This only serves to injure innovation and our economy as a whole. If you know how we can force changes in these laws, I am ready to move. I am tired of just complaining. We really need to change this system now!

Call your congress persons.

It would be better if someone organized a response like was done with SOPA. Unfortunately, companies like Google are playing the game rather than trying to inject sanity into it. :(

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