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www/server/staging software-patents.html |
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Date: |
Fri, 16 Dec 2022 15:18:23 -0500 (EST) |
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-<!--#include virtual="/server/header.html" -->
-<!-- Parent-Version: 1.97 -->
-<!-- This page is derived from /server/standards/boilerplate.html -->
-<!--#set var="TAGS" value="speeches" -->
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-<title>Software Patents - GNU Project - Free Software Foundation</title>
-<style type="text/css" media="print,screen"><!--
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-ol.compact li { margin-top: .5em; }
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-<!--GNUN: OUT-OF-DATE NOTICE-->
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-<div class="article reduced-width">
-<h2>Software patents — Obstacles to software development</h2>
-
-<address class="byline">by Richard Stallman</address>
-
-<div class="infobox">
-<p>This is the transcription of a talk presented by Richard M. Stallman on
-March 25, 2002, at the University of Cambridge
-<a href="https://www.cl.cam.ac.uk/";>Computer Laboratory</a>,
-organized by the
-<a href="https://web.archive.org/web/20221028103335/https://www.fipr.org/";>
-Foundation for Information Policy Research</a>.</p>
-<p>Transcript (<a
-href="https://www.cl.cam.ac.uk/~mgk25/stallman-patents.html";>original
-version</a>) and <a
-href="/audio-video/philosophy-recordings.html#rms-200203250">audio
-recording</a> by Nicholas Hill. HTML editing and links by Markus Kuhn
-and GNU webmasters.</p>
-</div>
-<hr class="thin" />
-<!-- 00:00 -->
-<p>
-You might have been familiar with my work on
-<a href="/philosophy/free-sw.html">free software</a>.
-This speech is not about that. This speech is about a way of
-<a
href="https://web.archive.org/web/20150329103351/http://www.progfree.org/Patents/against-software-patents.html";>
-misusing laws</a> to make software development a dangerous activity.
-This is about what happens when patent law gets applied to the field
-of software.
-</p>
-<!-- 00:21 -->
-<p>
-It's not about patenting software. That's a very bad way, a
-misleading way to describe it, because it's not a matter of patenting
-individual programs. If it were, it would make no difference, it
-would be basically harmless. Instead, it's about patenting ideas.
-Every patent covers some idea.
-<a
href="https://web.archive.org/web/20150329143651/http://progfree.org/Patents/patents.html";>
-Software patents</a> are patents that cover software ideas, ideas
-that you would use in developing software. That's what makes them a
-dangerous obstacle to all software development.
-</p>
-<!-- 00:58 -->
-
-<div class="toc">
-<h3 class="no-display">Table of contents</h3>
-<ul>
- <li><a href="#copyright-vs-patent">Differences between copyrights and
- patents</a></li>
- <li><a href="#patent-system">The patent system</a></li>
- <li><a href="#dealing-with-patents">How a developer can deal with patents</a>
- <ul>
- <li><a href="#patent-avoiding">Avoiding the patent</a></li>
- <li><a href="#patent-licensing">Licensing the patent</a></li>
- <li><a href="#patent-overturning">Overturning the patent in
court</a></li>
- </ul>
- </li>
- <li><a href="#software-specificity">Specificities of the software
field</a></li>
- <li><a href="#software-patent-policies">Addressing the problem of software
- patents in public policies</a></li>
- <li><a href="#footnotes">Footnotes</a></li>
-</ul>
-</div>
-
-<h3 id="copyright-vs-patent">Differences between copyrights and patents</h3>
-
-<p>
-You may have heard people use a misleading term
-“<a href="https://www.wipo.org/about-ip/en/";>intellectual
-property</a>.” This term, as you can see, is biased, because it
-makes an assumption: whatever it is you are talking about, the way to
-treat it is as a kind of property, which is one among many
-alternatives. This term “intellectual property”
-pre-judges the most basic question in whatever area you are dealing
-with. That's not conducive to clear and open minded thinking.
-</p>
-<!-- 01:35 -->
-<p>
-But there is an additional problem which has nothing to do with promoting
-any one opinion. It gets in the way of understanding even the facts.
-The term “intellectual property” is a catch-all. It lumps
-together various completely disparate areas of law, such as copyrights and
-patents, which are completely different from copyrights (every detail is
-different), and trademarks, which are even more different, and
-various other things more or less commonly encountered. None of them
-has anything in common with any of the others. Their origins,
-historically, are completely separate.
-<span class="gnun-split"></span>The laws were designed
-independently. They cover different areas of life and activities, and
-the public policy issues they raise are completely unrelated. So, if
-you try to think about them by lumping them together, you are guaranteed to
-come to foolish conclusions. Whatever they might be, there is literally no
-sensible or intelligent opinion you can have about “intellectual
-property.” So, if you want to think clearly, don't lump them
-together. Think about copyrights, and then think about patents. Learn
-about copyright law, and separately, learn about patent law.
-</p>
-<!-- 03:08 -->
-<p>
-To give you some of the biggest differences between copyrights and
-patents:
-</p>
-
-<ul class="big-list">
-<li>
-<p>
-Copyrights cover the details of expression of a work; copyrights
-don't cover any ideas. It's {an error} to consider copyrights as
-covering any idea. But patents <em>only</em> cover ideas and the use of ideas.
-</p>
-</li>
-<li>
-<p>
-Copyrights happen automatically. Patents are issued by
-a patent office in response to an application.
-It costs a lot of money. And it costs even more paying the lawyers
-to write the application than it costs to actually apply. It takes
-typically some years for the application to get considered, even though
-patent offices typically do an extremely sloppy job of considering them.
-</p>
-</li>
-<!-- 4:06 -->
-<li>
-<p>
-Copyrights last tremendously long. Nowadays, in some cases they can last as
-long as 150 years, whereas patents last for 20 years, which is long enough
-that you can outlive them, but still quite long by a timescale of a
-field such as software.
-</p>
-<p>
-Think back 20 years ago; the PC was a new thing. Imagine
-being constrained to develop software using only the ideas that were
-known in 1982.
-</p>
-</li>
-<!-- 4:41 -->
-<li>
-<p>
-Copyrights cover copying. If you write a novel that turns out to be
-word-for-word the same as <cite>Gone with the Wind</cite>, but you
-can prove you never saw <cite>Gone with the Wind</cite>, and that you
-wrote it on your own, that would be
-a defense to any accusation of copyright infringement.
-</p>
-<p>
-But a patent is an absolute monopoly on using an idea. Even if you could
-prove that you had the idea on your own, it would be entirely irrelevant if
-the idea is patented by somebody else.
-</p>
-</ul>
-<!-- 5:18 -->
-<p>
-I hope you will basically just forget about copyrights for the rest of this
talk,
-because this talk is about patents and you should never lump together
-copyrights and patents. Your understanding of these legal
-issues would be about like what would happen in your understanding of
-practical chemistry if you confused water and ethanol.
-</p>
-<!-- 5:48 -->
-
-<h3 id="patent-system">The patent system</h3>
-
-<p>
-When you hear people describe the patent system, they usually describe
-it from the point of view of somebody who is hoping to get a patent:
-what it would be like for you to get a patent; what it would be like
-for you to be walking down the street with a patent in your pocket, so
-that every so often you can pull it out and point it out at somebody
-and say “Give Me Your Money!” There is a reason for this
-bias, which is that most of the people who will tell you about this
-patent system have a stake in it, so they want you to like it.
-</p>
-<!-- 6:24 -->
-<p>
-There is another reason: the patent system is a lot like a
-lottery because only a tiny fraction of patents actually bring any
-benefit to those who hold the patents. In fact,
-<cite><a href="https://www.economist.com/leaders/2011/08/20/patent-medicine";>
-The Economist</a></cite> once compared it to a time consuming lottery.
-If you have seen ads for lotteries, they always invite you to think
-about winning. They don't invite you to think about losing, even
-though losing is far more likely. It's the same with ads for the
-patent system. They always invite you to think about being the one
-who wins.
-</p>
-<!-- 7:02 -->
-<p>
-To balance this bias, I am going to describe the patent system from
-the point of view of its victims. That is from the point of view of
-somebody who wants to develop software but is forced to contend with a
-system of software patents that might result in getting sued.
-</p>
-<!-- 7:23 -->
-<p>
-So, what's the first thing you are going to do after you have had an
-idea of what kind of program you are going to write? The first thing
-you might want to try to do to deal with the patent system is find out
-what patents may cover the program you want to write. This is
-impossible. The reason is that some of the patent applications that
-are pending are secret. After a certain amount of time they may get
-published, like 18 months. But that's plenty of time for you to
-write a program and even release it, not knowing that there is going to
-be a patent and you are going to get sued.
-<span class="gnun-split"></span>This is not just academic.
-In 1984, the Compress program was written (it was a program for data
-compression.) At the time, there was no patent on the LZW compression
-algorithm which it used. Then in 1985, the US issued a <a
-href="https://patents.justia.com/patent/4558302";>patent</a> on this
-algorithm, and over the next few years, those who distributed the
-Compress program started getting threats. There was no way that the
-author of Compress could have realized he was likely to get sued.
-All he did was use an idea that he found in a journal, just like
-programmers have always done. He hadn't realized that you could no
-longer safely use ideas that you found in a journal.
-</p>
-<!-- 8:58 -->
-<p>
-But let's forget about that problem… The issued patents are
-published by the patent office, so you can find the whole long list of
-them and see exactly what they say. Of course, you couldn't actually
-read that whole list as there are too many of them. In the US, there
-are hundreds of thousands of software patents, and
-there is no way you could keep track of what they are all about. So you'd
-have to try to search for relevant ones. Some people say that
-should be easy in these modern days of computers. You could search
-for keywords and so on. Well, that will work to a certain extent. You
-will find some patents in the area. You won't necessarily find them
-all, however.
-</p>
-<!-- 9:46 -->
-<p>
-For instance, there was a software patent which, I think, may have
-expired by now, on natural order recalculation in spreadsheets.
-This means basically that, when you make certain cells depend on other
-cells, it always recalculates everything after the things it depends
-on, so that after one recalculation everything is up to date. The
-first spreadsheets did their recalculation top-down, so if you made a
-cell depend on a cell that was lower down, and you had a few such steps, you
-had to recalculate several times to get the new values to propagate
-upwards. You were supposed to have things depend on cells above
-them, you see.
-<!-- 10:35 -->
-<span class="gnun-split"></span>
-Then somebody realized, “Why don't I just do the recalculation {so that}
-everything gets recalculated after the things it depends on?
-Do it in the right order, and they will all be up to date.” This
-algorithm is known as topological sorting. The first reference to it
-I could find was in 1963. The patent covered several dozen different
-ways you could implement topological sorting, but you wouldn't have
-found this patent by searching for “spreadsheet,” because it
-didn't mention that word. You couldn't have found it to “natural
-order” or “topological sort,” because it
-didn't have any of those terms in it. In fact, it was described as a
-“method of compiling formulas into object code.” I thinK
-when I first saw it, I thought it was the wrong patent.
-</p>
-<!-- 11:36 -->
-<p>
-But let's suppose that you got a list of patents. So you want to see now
-what you are not allowed to do. You try studying these patents; well,
-you discover it's very hard to understand them, because they are written in
-tortuous legal language, whose meaning is very hard to understand. In
-fact, things that patent offices say often don't mean what they seem to
-mean.
-</p>
-<!-- 12:02 -->
-<p>
-There was an Australian government study of the patent system in the
-1980's. It concluded that, aside from international pressure, there was no
-reason to have a patent system—it did no good for the public—and
-recommended abolishing it, if not for international pressure. One
-of the things they cited was that engineers don't try reading patents
-to learn anything, because it is too hard to understand them. They quoted
-one engineer saying “I can't recognize my own inventions in
-patenteese.” <i>[laughs]</i>
-</p>
-<!-- 12:36 -->
-<p>
-This is not just theoretical. Around 1990, a programmer named
-<a href="https://www.atarimagazines.com/startv2n3/hypercard.html";>Paul
-Heckel</a> sued Apple, claiming that Hypercard infringed a couple of
-his <a href="https://patents.justia.com/patent/4486857";>patents</a>.
-When he first saw Hypercard, he didn't think it had anything to do
-with his “inventions.” It didn't look
-similar. But his lawyer told him that you could read the patents as
-covering part of Hypercard, so he decided to then attack Apple.
-<span class="gnun-split"></span>When I gave a
-speech about this at Stanford, he was in the audience and he said “That's
-<a
href="https://groups.csail.mit.edu/mac/classes/6.805/articles/int-prop/heckel-debunking.html";>
-not true</a>, I just didn't understand the extent of my
-protection!” <i>[laughs]</i> And I said, “Yes, that's what
-I said!” <i>[laughs]</i>
-</p>
-
-<p>
-So, in fact, you
-are going to spend a lot of time talking with lawyers to figure out
-what these patents prohibit you from doing. And ultimately, they are going
-to say something like this: “If you do something in here, you
-are sure to lose; if you do something in here, there is a substantial
-chance of losing, and if you really want to be safe, stay out of this
-area. And, by the way, there is a sizable element of chance in the
-outcome of any lawsuit.” <i>[chuckle in the audience]</i>
-</p>
-<!-- 13:58 -->
-
-<h3 id="dealing-with-patents">How a developer can deal with patents</h3>
-
-<p>
-Now that you have a predictable terrain for doing business, <i>[chuckle in
-the audience]</i> what are you going to do? Well, there are three approaches
-that you might try, any of which is applicable in some cases.
-</p>
-
-<p>They are:</p>
-
-<ol class="compact">
- <li>avoiding the patent,</li>
- <li>licensing the patent, or</li>
- <li>overturning it in court.</li>
-</ol>
-<!-- 14:26 -->
-<p>
-Let me describe these three approaches and what makes them workable or
-unworkable.
-</p>
-
-<dl>
-<dt id="patent-avoiding">1. Avoiding the patent</dt>
-<dd>
-<p>
-That means don't use the idea that the patent covers. This can be
-easy or hard, depending on what that idea is. In some cases, a
-feature is patented. Then you avoid the patent by not implementing
-that feature. Then it just matters how important is that feature. In
-some cases, you can live without it.
-</p>
-
-<p>
-A while ago, the users of the
-word processor XyWrite got a downgrade in the mail. The downgrade
-removed a feature which allowed you to predefine abbreviations:
-when you typed an abbreviation followed by a punctuation character, it
-would immediately replace itself by some expansion. So that way
-you could define the abbreviation for some long phrase, type the
-abbreviation, and then the long phrase would be in your document. They
-wrote to me about this because they knew that
-the <a href="/software/emacs/">Emacs</a> editor has a similar feature.
-In fact, it had it since the 70's. This was interesting because it
-showed me that I've had at least one patentable idea in my life.
-<i>[laughs]</i> I knew it was patentable because somebody else
-patented it afterward! Actually, they had tried these various approaches.
-<!-- 16:06 -->
-<span class="gnun-split"></span>At first they tried
-negotiating with the patent holder, who turned out not to negotiate in
-good faith. Then they looked at whether they could have a chance of
-overturning the patent. What they decided to do was take out the
-feature. You can live without this feature. If the word processor
-lacks only this feature, maybe people will still use it. But as
-various features start getting hit, eventually you end up with a
-program that people think is not very good, and they are likely to reject
-it.
-</p>
-<!-- 16:49 -->
-<p>
-That's a rather narrow patent on a very specific feature. But what do you
-do with the <a href="https://patents.justia.com/patent/4873662";>British
-Telecom patent</a> on traversing hyperlinks together with dial-up
-access? Traversing hyperlinks is absolutely essential to a major use
-of computers these days. And dial-up access is also essential. How do
-you do without this feature, which, by the way, isn't even one
-feature, it is really just a combination of two, just arbitrarily
-juxtaposed. It is rather like a patent on having a sofa and
-television in the same room. <i>[laughs]</i>
-</p>
-<!-- 17:29 -->
-<p>
-Sometimes the idea that's patented will be so broad and basic that it's
-very hard, 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, and were never really available because the patent holders
-threatened them.
-<!-- 18:07 -->
-<span class="gnun-split"></span>Then, one program got away: the
-program <a
-href="https://web.archive.org/web/20170315023711/http://www.pgpi.org/";>
-PGP</a>, 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 noncommercial
-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.
-</p>
-<!-- 18:47 -->
-<p>
-Sometimes a specific algorithm gets patented. For instance, there is
-a patent on an optimized version of the Fast Fourier Transform. It
-runs about twice as fast. You can avoid that by using the ordinary
-FFT in your program. That part of your program will take twice as
-long. Maybe that doesn't matter. Maybe that's a small enough part of
-the program's running time that, if it is twice as slow, you won't
-really notice. Or maybe that means your program won't run at all,
-because it will take twice the real time to do its job. The effects vary.
-</p>
-<!-- 19:24 -->
-<p>
-In some cases, you can find a better algorithm. That may or may not
-do you any good. Because we couldn't use Compress, in the GNU Project
-we started looking for some other algorithm for data compression.
-Somebody wrote to us saying he had one. He had written a program and
-he decided to contribute it to us. We were going to release it, and just
-by chance I happened to see a copy of the <cite>New York Times</cite> {that}
-happened to have the weekly patent column in it. I didn't see a copy
-of the <cite>Times</cite> more than once every few months. So I looked at
-it, and it said that somebody had got a patent for “inventing a new
-method of compressing data.”
-<!-- 20:08 -->
-<span class="gnun-split"></span>I figured I better take a look at
-this patent. I got a copy, and it turned out to cover the program that
-we were just a week away from releasing. So that program died before it
-was born. Later on we did find another algorithm which was
-unpatented. That became the program <a href="/software/gzip/">
-Gzip</a>, which is now effectively the de-facto standard for data
-compression. As an algorithm to use in a program for data
-compression, it was fine. People who wanted to do data compression
-could use Gzip instead of Compress. But the same patented LZW
-compression algorithm was also used in image formats such as
-<a href="/philosophy/gif.html">GIF</a> format.
-<!-- 21:01 -->
-<span class="gnun-split"></span>And there, because the job
-that people wanted to do was not simply “Compress my data,” but
-“Make an image that people can display with their software,” it
turned
-out to be very hard to switch over to a different algorithm. In fact, we have
-not been able to do it in 10 years! Yes, people used the new Gzip
-algorithm to define <a href="https://www.w3.org/Graphics/PNG/";>another
-image format</a>, once people started getting threatened with lawsuits
-for using GIF files. But when we started saying to people “Hey, stop
-using GIF files, switch over to this!” people said, “We can't
-switch. The browsers don't support the new format yet.” And the
-browser developers said “We're not in a hurry about this. After
-all, nobody is using this file format.” <i>[laughs]</i>
-</p>
-<!-- 21:48 -->
-<p>
-In effect, society had so much inertia in the use of that particular format
(GIF)
-that we have not been able to get people to switch. Essentially, the
-community's use of the GIF format is still pushing sites into using
-GIF format, with the result that they are vulnerable to these threats.
-</p>
-
-<p>
-In fact, the situation is even more bizarre, because there are actually two
-patents covering the LZW compression algorithm. The patent office
-couldn't even tell that they were issuing two patents on the same
-thing. They couldn't keep track. There is a reason for this. It
-takes a while of study of these two patents to see that they really
-cover the same thing.
-</p>
-<!-- 22:35 -->
-<p>
-If they were patents on some chemical process, it would be much
-easier. Because you could see what substances were being used, what the
-inputs were, what the outputs were, which physical actions are being
-taken. No matter how they are described, you'd see what they were and
-then you would see that they are similar.
-</p>
-<!-- 22:56 -->
-<p>
-But when something is purely mathematical, you could have various ways to
-describe it, which are a lot more different. They are not superficially
-similar. You have to really understand them to see they are talking
-about the same thing. In the patent office, they don't have time. The US
-Patent Office, as of a few years ago, was spending 17 hours on the average
-per patent. This is not long enough to think carefully about them.
-So, of course they make mistakes like that. In fact, I told you about the
-program that died before it was born. Well, that algorithm also has had two
-patents issued for it in the US. Apparently, it is not that unusual.
-</p>
-<!-- 23:41 -->
-<p>
-So, avoiding the patents may be easy {or it} may be impossible; it may be easy
-but it makes your program useless. It varies depending on the
-situation.
-</p>
-<!-- 23:54 -->
-<p>
-Here is another point I should mention, that sometimes a company or
-consortium can make a format or protocol a de-facto standard. Then,
-if that format or protocol is patented, that's a real disaster for
-you. There are even official standards that are restricted by
-patents. There was a big political uproar last September when the
-<a href="https://www.w3.org/TR/patent-practice/";>World Wide Web
-Consortium</a> was proposing to start adopting standards that were
-covered by patents. The community objected, and they reversed
-themselves.
-<!-- 24:40 -->
-<span class="gnun-split"></span>They went back to insisting that patents had
to be
-freely implementable by anyone, and that standards had to be free
-for anyone to implement. That is an interesting victory. I think
-it's the first time any standards body has made that decision. It's
-normal for standards bodies to be willing to put something in a
-standard which in fact is restricted by patents, and people are not allowed to
-go ahead and implement it freely. We need to go to other standards
-bodies and call on them to change their rules.
-</p>
-</dd>
-<!-- 25:18 -->
-
-<dt id="patent-licensing">2. Licensing the patent</dt>
-<dd>
-<p>
-The second possibility is, instead of avoiding the patent, to get a
-license for the patent. This is not necessarily an option. The
-patent holder does not have to offer you a license. It's not
-required. Ten years ago, the League for Programming Freedom got a
-letter asking for help from somebody whose family business was making
-gambling machinery for casinos, and they used computers back then. He
-received a threat from another company that said, “We have the patents.
-You are not allowed to make these things. Shut down.”
-</p>
-<!-- 25:58 -->
-<p>
-I looked at that patent. It covered having a number of computers on a
-network for playing games, such that each computer supported more than
-one game and allowed you to be playing more than one game at a time.
-</p>
-<!-- 26:16 -->
-<p>
-You will find the patent offices really think that there is something
-brilliant about doing more than one of anything. <i>[laughs]</i>
-They don't realize
-that, in computer science, that's the most obvious way to generalize
-anything. You did it once. Now you can do it any number of times,
-make a subroutine. They think that if you do anything twice instead of
-once, you made a new invention. That somehow means you are brilliant and nobody
-can possibly argue with your right to boss them around and
-restrict them. Anyway, he wasn't offered a license, and he had to shut down.
-He couldn't even afford really to go to court. I would say that
-particular patent was an obvious idea. It's possible that a judge
-might have agreed. We will never know, though, because he could not afford
-to go to court.
-</p>
-<!-- 27:17 -->
-<p>
-However, a lot of patent holders do offer licenses. They often charge
-a lot of money for that, though. The company licensing the natural
-order recalculation patent was demanding 5% of the gross sales of
-every spreadsheet in the US. I am told that was the cheap pre-lawsuit
-price. If you actually made them sue you and they won, they'd demand
-more. You might be able to afford that 5% for licensing this one
-patent, but what if you need to license 20 different patents to make
-the program? Then all the money you take in has to go out to them. What if
-you need to license 21 patents?
-</p>
-<!-- 28:07 -->
-<p>
-People in business told me that, practically speaking, two or three of them
-would make any business unfeasible.
-</p>
-
-<p>
-But there is a situation where licensing patents is a very good solution.
-That is if you are a multinational mega-corporation. Because these
-companies own a lot of patents, and they cross-license with each
-other. That way, they escape most of the harm that the patent system
-does and they only get the good. IBM published an
-<a
href="https://web.archive.org/web/20150329104135/http://progfree.org/Links/prep.ai.mit.edu/ibm.think.article";>
-article</a> in Think magazine—I believe it was issue No. 5 of
-1990—on IBM's patent portfolio, which said that IBM got two kinds of
-benefits from its 9000 US patents. I believe the number is larger
-today. These were (1) collecting royalties, and (2) getting
-access to the patents of others. They said that the latter benefit was
-an order of magnitude greater. So, the benefit that IBM got from being
-allowed to use the ideas that were patented by others was 10 times the
-direct benefit IBM could get from licensing patents.
-</p>
-<!-- 29:30 -->
-<p>
-What does this really mean?
-What is the benefit that IBM gets from this access to the patents of
-others? It's basically the benefit of being excused from the trouble
-that the patent system can cause you. The patent system is like a
-lottery. What happens with any given patent could be nothing, could
-be a windfall for some patent holder and a disaster for everyone else.
-But IBM being so big, for them it averages out. They get to measure
-the average harm and good of the patent system.
-<span class="gnun-split"></span>For them, the trouble
-would have been 10 times the good. I say would
-have been because IBM, through cross-licensing, avoids experiencing that
-trouble. That trouble is only potential. It doesn't really happen to
-them. But when they measure the benefits of avoiding that trouble,
-they estimate it as 10 times the value of the money they collect from
-their patents.
-</p>
-<!-- 30:38 -->
-<p>
-This phenomenon of cross-licensing refutes a common myth, the myth of
-the starving genius. The myth that patents “protect” the
-“small inventor.” Those terms are propaganda terms. You
-shouldn't use them. The scenario is like this: Suppose there is a
-brilliant designer of whatever, who has spent years by himself,
-starving in an attic, designing a new wonderful kind of whatever,
-and now wants to manufacture it. Isn't it a shame the big companies
-are going to go into competition with him, take away all the business
-and he'll “starve”?
-<!-- 31:33 -->
-<span class="gnun-split"></span>Well, I have to point out that people
-in high tech fields are not generally working on their own, and that ideas
-don't come in a vacuum—they are based on the work of others—and
that
-these people have pretty good chances of getting a job if they need to
-these days. So this scenario, the idea that this brilliant idea came
-from this one person working alone, is unrealistic, and the idea
-that he is in danger of starving is unrealistic. But it is conceivable
-that somebody could have an idea, and this idea, maybe together with
-100 or 200 other ideas, could be the basis of making some kind of product,
-and that big companies might want to compete with him.
-<!-- 32:18 -->
-<span class="gnun-split"></span>So let's see
-what happens if he tries to use a patent to stop them. He says,
-“Oh no, IBM. You can't compete with me. I've got this patent.”
-And IBM says, “Let's see. Let's look at your product. Hmmm. I've got
this
-patent and this one and this one and this one and this one and this
-one, which parts of your product infringe. If you think you can fight
-against all of them in court, I'll just go back and look for some more.
-So, why don't you cross-license with me?” And then this
-brilliant small <i>[laughs]</i> inventor says, “Well, OK, I'll
-cross-license.” And now he can go back and make these wonderful whatever
-it is, and so can IBM. IBM now gets access to his patent, and gets the
-right to compete with him, which means that this patent didn't
-“protect” him at all. The patent system doesn't really do
-that.
-</p>
-<!-- 33:22 -->
-<p>
-The mega-corporations avoid, for the most part, the harm of the patent
-system. They see mainly the good side. That's why they want to have
-software patents. They are the ones who will benefit from it. But if
-you are really a small inventor, or work for a small company, the small
-company is not going to be able to do this. They try. The problem is
-that they cannot get enough patents to do this. You see, any given patent is
-pointing in a certain direction. So, if a small company has patents
-pointing there, there, and there <i>[showing left side]</i>, and somebody over
-there <i>[showing right side]</i> points a patent at them and says “Give
-me your money,” they are helpless, because they've got patents pointing
-there or near <i>[showing left side]</i>, but not there <i>[showing right
side]</i>.
-<!-- 34:13 -->
-<span class="gnun-split"></span>
-IBM can do it, because with these 9000 patents, they are pointing
-everywhere. No matter where you are, there is an IBM patent pointing at
-you, probably. So, IBM can always make you cross-license, almost always.
-But the small companies only occasionally can make someone cross-license.
-They will say they want patents for defensive purposes, but they won't
-get enough to be able to defend themselves.
-</p>
-<!-- 34:43 -->
-<p>
-There are cases where even IBM cannot make someone cross-license.
-That is when there is a company whose sole business is taking a patent
-and squeezing money out of people. The company that had the natural
-order recalculation patent was exactly such a company. Their sole
-business was to threaten to sue people and collect money from people
-who were really developing something.
-</p>
-<!-- 35:09 -->
-<p>
-There are no patents on legal procedures. <i>[laughs]</i> I guess the
lawyers
-sort of understand what a pain it would be to have to deal with the patent
-system themselves. The result is that there is no way you can get a patent
-to make that company, <a
-href="https://www.nytimes.com/1990/01/14/business/a-white-knight-draws-cries-of-patent-blackmail.html";>
-Refac</a>, cross-license with you. So they go around
-squeezing everyone. But I guess the companies like IBM figure that's
-part of the price of doing business so they can live with it.
-</p>
-<!-- 35:43 -->
-<p>
-So that's the possibility of licensing a patent, which may or may not
-be possible. And you may or may not be able to afford it.
-</p>
-</dd>
-
-<dt id="patent-overturning">3. Overturning the patent in court</dt>
-<dd>
-<p>
-Supposedly, in order to be patented, something has to be new, useful
-and unobvious. That's the language used in the US. I think other
-countries have different language which is pretty much equivalent to
-it. Of course, when the patent office gets into the game and they start
-interpreting new and unobvious, “new” turns out to mean
-“we don't have it in our files,” and “unobvious”
-tends to mean “unobvious to somebody with an IQ of 50.”
-</p>
-<!-- 36:36 -->
-<p>
-Somebody who studies most of the software patents issued in the US—or
-at least he used to; I don't know if he can still keep up with them—said
-that 90% of them wouldn't pass the Crystal City test, which meant,
-if the people in the patent office went outside to the news stand and
-got some computer magazines, they would see that these ideas were
-already known.
-</p>
-<!-- 36:59 -->
-<p>
-The patent office does things that are so obviously foolish, you
-wouldn't even have to know the state of the art to see they are
-foolish. This is not limited to software. I once saw the famous
-Harvard mouse patent, which was obtained after Harvard genetically
-engineered a strain of mouse with a cancer causing gene. The cancer
-causing gene was already known, and was inserted using known techniques
-into an already existing strain of mouse. The patent they got covered
-inserting any cancer causing gene into any kind of mammal, using any
-method whatsoever. You don't have to know anything about genetic
-engineering to realize that is ridiculous.
-</p>
-<!-- 36:52 -->
-<p>
-But I am told that this overclaiming is normal practice, and that the US
-Patent Office sometimes invited patent applicants to make their claims
-broader. Basically, make the claims broader until you think they are
-running into something else that's unambiguous prior art. See how
-much land grab in mental space you can get away with.
-</p>
-
-<p>
-When programmers look at a lot of software patents, they say, “This
-is ridiculously <a
-href="https://web.archive.org/web/20040604051644/http://people.qualcomm.com/karn/patents/patent-comments.html";>
-obvious</a>!” Patent bureaucrats have all sorts of excuses to
-justify ignoring what programmers think. They say “Oh! But you
-have to consider it in terms of the way things were 10 or 20 years
-ago.” Then they discovered that if they talk something to death
-then you can eventually lose your bearings. Anything can look
-unobvious if you tear it apart enough, analyze it enough. You simply
-lose all standard of obviousness, or at least lose the ability to
-justify any standard of obvious or unobvious. Then, of course, they
-describe the patent holders as brilliant inventors, all of them.
-Therefore we can't question their entitlement to power over what we
-can do.
-</p>
-<!-- 39:12 -->
-<p>
-If you go to court, the judges are likely to be a little more
-stringent about the idea of what is obvious or not. But the problem
-is it costs millions of dollars to do that. I heard of one
-patent case, the defendant I remember was Qualcomm, and I believe the
-ruling ultimately was 13 million dollars, of which most went to pay the
-lawyers on both sides. There were a few million dollars left over for
-the plaintiff, because they lost.
-</p>
-<!-- 39:51 -->
-<p>
-To a large extent, the question of the validity of a patent will
-depend on historical accidents. Lots of historical accidents, such as
-precisely what was published when, and which of those things somebody
-manages to find, which of them didn't get lost, the precise dates, and so on.
-So it's many historical accidents that determine whether the patent is valid.
-</p>
-<!-- 40:20 -->
-<p>In fact, it is a weird thing the
-<a href="https://patents.justia.com/patent/4873662";>
-British Telecom following hyperlinks together with phone access
-patent</a>, was applied for, I think, in 1975. I think it was in 1974
-that I developed the Info package for the first time. The Info
-package allows you to traverse hyperlinks, and people did use
-telephones to dial up and access the system. So in fact, I produced a
-piece of prior art for that patent. That's the second patentable
-idea I've had in my life, but I don't think I have any proof of
-that. I didn't think this was interesting enough to publish it.
-After all, the idea of following hyperlinks, I got that from a demo of
-Engelbart's editor. He is the one who had an idea that was
-interesting to publish.
-<!-- 41:22 -->
-<span class="gnun-split"></span>I called it “poor man's
-hypertext,” because I
-had to implement it in the context of TECO. It wasn't as powerful as
-his hypertext, but it was at least useful for browsing documentation,
-which was all it was meant for, and as for there being dial-up access
-to the system, well, there was, but it didn't occur to me that the one
-had any particular thing to do with the other. I wasn't going to try to
-publish a paper saying “Oh! I implemented this poor man's
-hypertext, and guess what! There are dial-up lines on the computer
-too!” <i>[laughs]</i> I suspect there is no way to tell
-precisely on what dates
-I implemented this. And was it published in any sense? Well, we
-invited guests to come in across the ARPAnet and log in on our
-machine, so they could have browsed documentation using Info, and seen
-the thing. And if they had asked us, they would have found we have
-dial-up access. But as you can see, historical accident determines
-whether you've got prior art.
-</p>
-<!-- 42:37 -->
-<p>
-Now of course, there is a publication made by Engelbart about
-hypertext, which they are going to show. I don't think it says
-anything about having dial-ups on the computer however. So, whether it
-will suffice is not clear.
-</p>
-
-<p>
-So, this is an option, the possibility of going to court to overturn the
patent.
-But, because of the expense, it is often out of the question even if you
-can find solid prior art that ought to be sufficient to overturn the
-patent. As a result, an invalid patent, a patent that nominally
-shouldn't have existed (but in fact lots and lots of them do) is a
-dangerous weapon. If somebody attacks you with an invalid patent,
-that can really cause a lot of trouble for you. You might be able to
-bluff them away by showing them the prior art. It depends
-whether they can get scared off that way or they might think
-“Well, you are just bluffing, we figure you can't really go to
-court. You can't afford it, so we'll sue you anyway.”
-</p>
-<!-- 43:45 -->
-</dd>
-</dl>
-
-<p>
-All of these three possibilities are things that sometimes you can
-manage to use, but often you can't. So you have to face patent after
-patent after patent. Each time you may be able to find one of these
-three possibilities you can use, then there is another patent, then
-another, and another. It gets like crossing a minefield. Each step
-you take, each design decision, probably won't step on a patent. So
-you can take a few steps and, probably, there won't be an explosion.
-But the chance that you will get all the way through the minefield and get
-to develop the program you wanted to develop without ever stepping on a
-patent gets less and less as the program gets bigger.
-</p>
-<!-- 43:38 -->
-
-<h3 id="software-specificity">Specificities of the software field</h3>
-
-<p>
-Now, people used to say to me, “Well, there are patents in other
-fields, why should software be exempt?” Note the bizarre
-assumption in there that somehow we are all supposed to suffer through
-the patent system. It is like saying “Some people get cancer.
-Why should you be exempt?” <i>Laughs]</i> As I see it, each person
-who doesn't get cancer is good. But there is, behind that, a less biased
-question, which is a good question, which is: Is software different
-from other fields? Should patent policy be different in different
-fields? And if so, why?
-</p>
-<!-- 45:24 -->
-<p>
-Let me address that question: patents relate to different fields
-differently because in various fields patents relate to products
-differently.
-</p>
-
-<p>
-On the one extreme we have pharmaceuticals, where a given chemical formula
-would be patented, so that patent covers one and only one product.
-Some other product wouldn't be covered by the existing patent. If
-there is to be a patent for this new product, the patent holder would
-be whoever developed the new product.
-</p>
-<!-- 45:59 -->
-<p>
-That fits in with the naive idea of the patent system that we have,
-that, if you are designing a new product, you are going to get
-“The Patent;” the idea that there is one patent per
-product and that it covers <em>the</em> idea of that product. In some fields
-that's closer to being true. In other fields it's farther from being
-true. Software is at the opposite extreme.
-This is because software packages are very big, usually, and they
-use many different ideas in a new combination. If the program is new,
-it's not just copied, then it's probably using a different combination
-of ideas combined, of course, with newly written code, because you
-can't just magically say the names of these ideas and have them work.
-You have to implement them all.
-<!-- 46:53 -->
-<span class="gnun-split"></span>You have to implement them all in
-that combination. The result is that, when you write a program,
-you are using lots of different ideas, any one of them might be
-patented by somebody. A pair of them might be patented as a combination
-by somebody. There might be several different ways of describing one
-idea, which might be patented by various different people. So there
-are possibly thousands of things, thousands of points of vulnerability
-in your program, which might be patented by somebody else already.
-This is why software patents tend to obstruct the progress of
-software—the work of software development.
-</p>
-<!-- 47:35 -->
-<p>
-If it were one patent-one product, then these patents wouldn't obstruct the
-development of products, because if you developed a new product it
-wouldn't be patented by somebody else already. But when one product
-corresponds to many different ideas combined, it becomes very likely that
-your new product is going to be patented by somebody else already. In
-fact, there is economic research now showing just how imposing a
-patent system on a field where there is incremental innovation can
-retard progress.
-<!-- 48:13 -->
-<span class="gnun-split"></span>You see, the advocates of software patents say
-“Well yes, there may be problems, but more important than any
-problems, the patents must promote innovation, and that is so important
-it doesn't matter what problems they cause.” Of course, they
-don't say that out loud because it is ridiculous, but implicitly they
-want you to believe that, as long as it promotes progress, that
-outweighs any possible cost. But actually, there is no reason to
-believe it does promote progress. We now have a model showing
-precisely how patents <em>can</em> retard progress. The case where that model
-can fit describes the software field pretty well: incremental
-innovation.
-</p>
-<!-- 49:02 -->
-<p>
-Why is software on that extreme of the spectrum? The reason is that
-in software we are developing idealized mathematical objects. You can
-build a complicated castle and have it rest on a thin line, and it will
-stay up because it doesn't weigh anything. In other fields, people
-have to cope with the perversity of matter—of physical objects.
-Matter does what it is going to do. You can try to model it, and if
-the actual behavior doesn't fit the model, tough on you. Because
-the challenge is to make physical objects that really work.
-</p>
-<!-- 49:42 -->
-<p>
-If I wanted to put an <code>if</code> statement inside a
-<code>while</code> statement, I don't have to worry about whether the
-<code>if</code> statement will oscillate at a certain frequency and
-rub against the <code>while</code> statement and eventually they will
-fracture. <i>[laughs]</i> I don't have to worry whether it will
oscillate at a
-certain higher frequency and induce a signal in the value of some
-other variable. I don't have to worry about how much current that
-<code>if</code> statement will draw, whether it can dissipate the
-heat there inside that <code>while</code> statement. Whether there will be a
-voltage drop across the <code>while</code> statement that will make the
-<code>if</code> statement not function.
-<!-- 50:31 -->
-<span class="gnun-split"></span>I don't have to worry that
-if I run this program in a salt-water environment, that the salt water
-might get in between the <code>if</code> statement and the
-<code>while</code> statement and cause corrosion. I don't have to
-worry, when I refer to the value of a variable, whether I am exceeding
-the fan-out limit by referring to it too many times. I don't have to worry,
-when I refer to the variable, how much capacitance it has and whether
-there has been sufficient time to charge up the value. I don't have
-to worry, when I write the program, about how I'm going to physically
-assemble each copy, and whether I can manage to get access to put that
-<code>if</code> statement inside the <code>while</code> statement.
-And I don't have to worry about how I'm going to gain access in case the
-<code>if</code> statement breaks, to remove it and replace it with a
-new one. <i>[laughs]</i>
-</p>
-<!-- 51:25 -->
-<p>
-So many problems that we don't have to worry about in
-software. That makes it fundamentally easier. It's fundamentally
-easier to write a program than to design a physical object that's
-going to work. This might seem strange because you have probably heard
-people talking about how hard software is to design, and how this is a
-big problem and how we are going to solve it. They are not really
-talking about the same question I am. See, I'm comparing physical and
-software systems of the same complexity, the same number of parts. I'm
-saying the software system is much easier to design than the
-physical system. But the intelligence of people in these various
-fields is the same, so what do we do when we are confronted with an
-easy field? We just push it farther! We push our abilities to the
-limit.
-<!-- 52:21 -->
-<span class="gnun-split"></span>If systems of the same size are easy,
-let's make systems which are ten times as big, then it will be hard!
-<i>[laughs]</i> That's what we do! We
-make software systems far bigger in terms of number of parts
-than physical systems. A physical system whose design has a million
-different pieces in it is a mega project. A computer program whose
-design has a million pieces in it, that's maybe 300,000 lines, a few
-people will write that in a couple of years. That's not
-particularly a giant program. GNU Emacs now has several million pieces
-in its design I think, because it has a million lines of code. This was a
-project done with essentially no funding whatsoever. Mostly done by
-people in their spare time.
-</p>
-<!-- 53:19 -->
-<p>
-There is another big saving. If you designed a physical product,
-the next thing you have to do is design the factory to make it. To
-build this factory may cost millions or tens of millions, whereas to
-make copies of the program, you just have to type <code>copy</code>.
-The same <code>copy</code> command will copy any program. You want copies on
CD,
-fine. You burn a master CD and send it off to a CD plant. They
-will use the same equipment that will copy any contents on a CD. You
-don't have to build a factory to <em>make</em> this product. There is
-tremendous simplification and tremendous reduction in costs of
-designing things.
-<!-- 54:15 -->
-<span class="gnun-split"></span>The result is, say for an automobile company,
if
-they are going to spend 50 million dollars to build a factory, to build a new
model
-of auto, they can hire some lawyers to cope with some patent license
-negotiations. They could even cope with a lawsuit if they wanted to.
-Designing a program of the same complexity might cost 50 thousand dollars, or
100
-thousand dollars. By comparison, the cost of dealing with the patent
-system is crushing. Actually designing a program with the same
-complexity as the mechanical design of an auto, that's probably a month
-work. How many parts does an auto have… that is if it is an
-auto that doesn't have computers in it?[<a href="#f1">1</a>] There
-are not that many parts, you see. Which is not to say designing a good one is
-easy, but just that there are not that many different things in it.
-</p>
-<!-- 55:16 -->
-<p>
-The result is, software really is different from other fields because
-we are working with mathematical stuff. Designing something is far, far
-easier. And the result is we regularly make systems that are
-much, much larger, and do so with just a few people. The result is
-that the patent system then, instead of being close to “one product, one
-patent,” we are in a system where one product involves many, many ideas
-that could be patented already.
-</p>
-<!-- 55:55 -->
-<p>
-The best way to explain it by analogy is with symphonies. A symphony
-is also long and has many notes in it, and probably uses many musical
-ideas. Imagine if the governments of Europe in the 1700's had decided
-they wanted to promote the progress of symphonic music by establishing
-a European Musical Patent Office that would give patents for any kind
-of musical idea that you could state in words. Then imagine it is
-around 1800 and you are Beethoven and you want to write a symphony. You are
-going to find that getting your symphony to be legal, so that it doesn't
infringe
-any patents, is going to be harder than writing a good symphony.
-<!-- 56:42 -->
-<span class="gnun-split"></span>When
-you complain about this, the patent holders would say “Ah
-Beethoven, you are just bitching because you have no ideas of your
-own. All you want to do is rip off our inventions.” Beethoven,
-as it happens, had a lot of new musical ideas, but he had to use a lot
-of existing musical ideas in order to make recognizable music, in
-order to make music that listeners could possibly like, that they
-could recognize as music. Nobody is so brilliant that he can
-re-invent music and make something that people want to listen
-to. <a href="https://en.wikipedia.org/wiki/Pierre_Boulez";>Pierre
-Boulez</a> said he would try to do that, and… who listens to Pierre
-Boulez? <i>[laughs]</i>
-</p>
-<!-- 57:30 -->
-<p>
-Nobody is so brilliant he can re-invent all computer
-science, completely new. If he did, he'd make something that the
-users would find so strange that they wouldn't want to use it. If you
-look at a word processor today, you'll find, I think, hundreds of
-different features. If you develop a nice new innovative word
-processor, that means there are some new ideas in it, but there must
-be hundreds of old ideas in it. If you are not allowed to use them,
-you cannot make an innovative word processor.
-</p>
-<!-- 58:06 -->
-<p>
-Because the work of software development is so big, the result is that
-we don't need any artificial scheme to incentivize new ideas. You
-just have people writing software and they will have some new ideas.
-If you want to write a program, you want to make it good. Some ideas
-will come to you, and some of them you will see a way to use. What used
-to happen—because I was in the software field before there were
-software patents—was most of the developers would publish any new
-ideas that they thought were noteworthy, that they thought they
-might get any credit or respect for.
-<!-- 58:52 -->
-<span class="gnun-split"></span>The ideas that were too small or
-not impressive enough, they would not publish because that would be
-silly. Now the patent system is supposed to encourage disclosure of
-ideas. In fact, in the old days, nobody kept the ideas secret. They
-kept the code secret, it's true. The code, after all, represented the
-bulk of the work. They would typically keep the code secret and publish the
-ideas. That way, the employees could get some credit and feel good;
-you know, they were allowed to publish papers.
-After software patents, they still kept the code secret and they
-patented the ideas. So, in fact, disclosure has not been encouraged in
-any meaningful sense. The same things are kept secret now as were kept secret
before,
-but the ideas, which used to be published so we could use them, now are
-likely to be patented and off-limits for 20 years.
-</p>
-<!-- 59:53 -->
-
-<h3 id="software-patent-policies">Addressing the problem of software patents
-in public policies</h3>
-
-<p>
-What can a
-country do to change this? How should we change the policy to solve
-this problem? There are two places you can attack it. One is the place where
-patents are being applied for and issued, in the patent office. And the
-other is when patents are being applied—that is, the question of
-what does a patent cover.
-</p>
-<!-- 1:00:21 -->
-<p>
-Changing the criteria for issuing patents, or simply keeping a good
-criteria for issuing patents, can work in a country which has not
-authorized software patents before; for instance, for the most part,
-in Europe. Simply to clearly re-enforce the European Patent Office's
-rules which say that software is not patentable. This is a good
-solution for Europe. Europe is now considering a directive on
-software patents. The directive I suppose may be broader than that
-but one of its important implications is for software patents. Simply
-by modifying this to say software ideas cannot be patented will keep
-the problem out of Europe for the most part, except for some countries
-that may have admitted the problem on their own—unfortunately, one of
-them being the UK, unfortunately for you.
-</p>
-<!-- 1:01:25 -->
-<p>
-That approach won't work in the US. The reason is that the US already
-has large numbers of software patents, and any change in the criteria
-for issuing patents won't get rid of the existing
-ones. However in fact, these patents are not officially
-labeled as software patents. I say software patents, but what do I
-really mean? I mean patents that might potentially apply to software,
-that might potentially get you sued for writing software.
-<!-- 1:01:55 -->
-<span class="gnun-split"></span>
-The patent office doesn't divide patents into software patents and
-other patents. So, in fact, any patent might conceivably get you sued
-for writing software if it could apply to some software. So, in the US,
-a solution would have to be done through changing the applicability,
-the scope of patents, saying that a pure software implementation,
-running on general purpose computer hardware which does not in itself
-infringe the patent, is not covered by any patent and you can't be
-sued for it. That's the other kind of solution.
-</p>
-<!-- 1:02:42 -->
-<p>
-But the first kind of solution, the solution that operates on what kinds
-of patents can be valid is a good solution for Europe to use.
-</p>
-
-<p>
-When the US started having software patents, there was no political
-debate. In fact, nobody noticed. The software field, for the most
-part, didn't even notice. There was a Supreme Court decision in 1981
-which considered a patent on a process for curing rubber. The ruling
-was that the fact that the apparatus included a computer and a program
-as part of the process to cure the rubber did not make it
-unpatentable.
-<!-- 1:03:26 -->
-<span class="gnun-split"></span>The appeals court the next year, which
considers all
-patent cases, reversed the qualifiers. They said the fact that there
-is a computer and a program in this makes it patentable. The fact
-that there is a computer and program in anything makes it patentable.
-This is why the US started having business procedure patents.
-Because the business procedures were carried out on a computer and
-that made them patentable. So this ruling was made, and I think the
-natural order recalculation patent was one of the first or might have
-been even the first.
-</p>
-<!-- 1:04:06 -->
-<p>
-But throughout the 80's we mostly didn't know about this. It was around
-1990 that programmers in the US started to become aware
-that they were faced with a danger from software patents. So, I saw
-how the field worked before then and how it worked after. I saw no
-particular speed up in progress after 1990. There was no political
-debate in the US, but in Europe there has been a big political debate.
-Several years ago there was a push to amend the
-Munich treaty that established the <a href="https://www.epo.org/";>
-European Patent Office</a>. It has a
-<a
href="https://www.epo.org/law-practice/legal-texts/html/epc/1973/e/ar52.html";>
-clause saying that software is not patentable</a>. The push was to
-amend that to start allowing software patents. But the community took
-notice of this. It was actually free software developers and free
-software users who took the lead.
-</p>
-<!-- 1:04:58 -->
-<p>
-We are not the only ones threatened by software patents. All software
-developers are threatened by software patents and even software users
-are threatened. For instance, Paul Heckel, when
-Apple wasn't very scared of his threats, he threatened to start suing
-Apple customers. That, Apple found very scary. They figured they
-couldn't afford to have their customers being sued like that, even if
-they would ultimately win. So users can get sued too, either as a
-way of attacking a developer, or just as a way to squeeze money out of
-them on their own or cause mayhem to them on their own.
-</p>
-<!-- 1:05:41 -->
-<p>
-All software developers and users are vulnerable, but it was the free
-software community in Europe that took the lead in organizing
-opposition. In fact, twice now the countries that govern the European
-Patent Office voted not to amend that treaty. Then the EU took a hand,
-and the directorates of the EU were divided on the issue.
-</p>
-
-<p> The one whose job is to promote software is against software
-patents, it seems. But they were not in charge of this issue. It's the
-open market directorate that is in charge, and that's led by somebody who
-is in favor of software patents. They basically disregarded public
-opinion that had been expressed to them, and they proposed a
-directive to allow software patents.[<a href="#f3">2</a>] The French
-government has already said they are against it. People are
-working in various other governments in Europe to oppose software
-patents, and it is vital to start doing so here.
-</p>
-<!-- 1:06:44 -->
-<p>
-According to Hartmut
-Pilch, who is one of the leaders in the European struggle against
-software patents, the main impetus comes from the <a
-href="https://www.gov.uk/topic/intellectual-property/patents";>UK
-Patent Office</a>. The UK Patent Office
-is simply biased in favor of software patents. It had a
-public consultation, and most of the responses were opposed to software
-patents. They then wrote a report saying that people seem to be content
-with them, <i>[laughs]</i> completely disregarding the answers. You see, the
-free software community said, “Please send the answers to them, and
-please send your answers to us too and we'll publish them.” So they
-published these answers, which were opposed generally. You'd have
-never guessed that from the report that the UK Patent Office
-published.
-</p>
-<!-- 1:07:36 -->
-<p>
-They [the UK Patent and Trademark Office] use a term that they call
-&dlquo;technical effect.&drquo; This is a term which can stretch
tremendously. You
-are supposed to think it means a program idea would only be patentable
-if it relates closely to specific physical activities. If that is the
-interpretation, it would mostly solve the problem. If the only
-software ideas that could be patented were those that really did relate
-to a particular technical, specific physical result that you might
-have patented if you didn't use a program, that would be OK. The
-problem is you can stretch that term. You can describe the
-result you get by running any program as a physical result. How does
-this physical result differ from every other? Well it is as a
-result of this computation. The result is that the UK Patent Office
-is proposing something that looks like it leads to mostly solving the
-problem, and really gives <i>carte blanche</i> for patenting almost anything.
-</p>
-<!-- 1:08:48 -->
-<p>
-The people in the same ministry are also involved in a copyright
-issue which really has nothing to do with software patents except that
-it's being handled by the same people. It's a question of
-interpreting the recent EU copyright directive, a horrible law like
-the <a href="https://www.eff.org/issues/dmca";>Digital Millennium Copyright
-Act in the US</a>. But there is some latitude for countries to decide
-how to implement it. The UK is proposing the most draconian possible
-way of implementing this directive. You could greatly reduce the harm
-that it does by implementing it properly. The UK wants to maximize
-the tyrannical effect of this directive. It seems there is a certain group,
the
-<a
href="https://webarchive.nationalarchives.gov.uk/ukgwa/20070603164510/http://www.dti.gov.uk/";>
-Department of Trade and Industry [archived]</a>, <i>[laughs]</i> who need
-to be reined in. <i>[laughs]</i> It is necessary to put a
-check on their activities. Stop their creating new forms of power.
-</p>
-<!-- 1:09:55 -->
-<p>
-Software patents tie up every software developer and every computer
-user in a new form of bureaucracy. If the businesses that use
-computers realized how much trouble this can cause for them, they
-would be up in arms, and I'm sure they could stop it. Business doesn't
-like being tied up in bureaucracy.
-</p>
-<!-- 1:10:16 -->
-<p>
-Sometimes, of course, it serves an important purpose. There are some
-areas where we wish the UK government did a more careful job of tying
-certain businesses up in bureaucracy, like when it involves moving
-animals around.[<a href="#f4">3</a>] But in some cases, when it
-doesn't serve any purpose except to create artificial monopolies, so
-that somebody can interfere with software development, squeeze money
-out of developers and users, then we should reject it.
-</p>
-<!-- 1:10:47 -->
-<p>
-We need to make management aware of what software patents will do to
-them. Get their support
-in <a href="https://ffii.org/";>fighting against
-software patents in Europe</a>.
-</p>
-
-<p>
-The battle is not over. It still can be won. <i>[applause]</i>
-</p>
-<!-- 1:11:03 -->
-<div class="column-limit"></div>
-
-<h3 id="footnotes" class="footnote">Footnotes</h3>
-<ol>
- <li id="f1">There are approximately 300-400 unique parts in an
- automatic transmission, and a transmission is generally the most
- complicated component of an auto. To design a transmission may take
- six months to a year, and even then it may take longer to actually
- get it built and functioning. However, a program with 500 to 600
- functional parts would have 200 to 300 lines of actual code, and
- would probably take a good programmer a day to a week to write, test
- and debug.</li>
-
- <li id="f3">On 6 July 2005, the European Parliament rejected the
- software patent directive by 648 out of 680 votes. However, we must
- not forget the issue of software patents, as those who were pressing
- for patenting are trying to revive the recently thrown-out
- directive. We also have to ensure that the European Patent Office
- (EPO) and the national offices in different EU countries stop
- conceding patents for software included in other kinds of
- inventions.</li>
-
- <li id="f4">To make it harder for foot-and-mouth disease to
- spread.</li>
-</ol>
-
-<hr class="no-display" />
-<div class="edu-note c"><p id="fsfs">This speech is published in
-<a href="https://shop.fsf.org/product/free-software-free-society/";><cite>Free
-Software, Free Society: The Selected Essays of Richard
-M. Stallman</cite></a>.</p></div>
-</div>
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-<!-- Regarding copyright, in general, standalone pages (as opposed to
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