Protection is already available for software through the copyright system, which is automatically given for free under international agreements, such as the World Trade Organisation's TRIPs Agreement1. This prevents partial or full reproduction of copyrighted material without consent. It could be asked that as software is already protected under the copyright system why is there a need for any other sort of protection?
However, in opposition to the copyright model stands the patent system, which grants a time limited monopoly on the invention (about 20 years). During this time the patent holder has the exclusive right to the invention, which they can sell or grant licences for others to use, and can sue anyone who uses it without their permission.
Patenting is about protection but at a substantial cost. Although it is expensive to obtain a patent, most patents have no real commercial value. Evidence from the European Patent Office suggests that around one per cent of patents will make a significant profit for their owner; nine per cent will cover their costs; and 90 per cent will not produce sufficient income to cover these costs2.
The original goal of the patent system was to stimulate innovation and research by awarding innovators. It was thought that extending patent protection to computer programs would promote research and development and, thus, increase the rate of innovation. Although supporters of the patent system claim that patents promote innovation by making the invention known to the public, voices are increasingly being raised against this system, since only the larger companies can afford the costs involved in patent maintenance.
This issue of software patents stirs up controversy and divides the IT industry into two camps. Some of the biggest companies in the IT sector have opposing views, for example those in favour of software patents include; IBM, Intel and Microsoft and those against include; Adobe, Oracle and Synopsis. Protecting software with patents comes with a variety of problems. The patent system was introduced a long time before computers and software and many argue that it cannot deal appropriately with the complexities involved with software.
Patenting was supposed to encourage and promote innovation. However, it is sometimes having the opposite effect as the costs involved are taking investment away from research and development. Many leaders in the software industry have found that the cost of obtaining patents and defending against competitors' patents requires that significant funds be diverted away from research and development.
In a keynote speech at the LinuxWorld Conference & Expo, Mark Webbink, Deputy General at Red Hat Inc., said that 'there is a real disconnect between the concept of innovation and the concept of patents in software'. He added that as far as innovation was concerned, software patents would have stifled many of the programs that users take for granted today. Programs like VisiCalc and Word-Star were not patented, and gave way to invaluable applications like Microsoft Word and Excel, Webbink said3.
It's an illusion that patents serve to protect the lone inventor. In fact, patents favour large corporations who can afford them. Unlike copyright, which costs nothing, patents are not available and affordable to all. Even if a small company affords one or more patents, it still can't practically enforce them against a large corporation, as patent litigation is very expensive.
Copyright protection has proven to be a powerful method for protecting investment in software innovation, therefore, the additional protection that patents offer is not needed and is not worth the expense and uncertainty associated with patents. Software developers are perfectly protected without patents as anyone who writes a computer program automatically owns copyright. It's copyright law that made Microsoft, Oracle, SAP and the entire software industry so very big4.
One of the biggest problems with patent law is that you can 'violate' a patent without even knowing it exists, as it can be very difficult to search and differentiate between similar patents.
Patent law is not appropriate for industries such as software development in which innovations occur rapidly. The big problem is that patents are valid for 20 years. In a slow-paced industry, that may be acceptable, but for computer software, that means anything which was considered a groundbreaking invention in the days when Bill Gates was just starting out would still enjoy patent protection today. Even the greatest visionaries of the IT industry have never been able to predict the next 20 years. Even to predict the next two years is a major challenge in the software market.
Software patents would be negative for most of us. Patents turn software publishing into the privilege of a few. Of course, everyone can still develop software. However, in a world with countless software patents, only large corporations are equipped to deal with the costs and legal risks.
Software patents were introduced in United States law about 30 years ago and over the last decade there has been a sharp increase in the number of software patents granted. Software patents have not yet been fully incorporated into UK and European legislation but if they are implemented they are likely to follow the example set by the US.
After three decades of software patenting in the US, the majority of the software sector should by now be using patents as their primary tool for justifying new investments. There should be many success stories about why we need patents, however these success stories are just not there. Instead all we have seen is more and more lawsuits for patent violation. Copyright, patent and trademark infringements are amongst the most popular triggers for litigation in the technology industry5.
Although companies such as Oracle Corporation are generally opposed to the patenting of software, nonetheless, they do apply for and receive patents. Their reasoning is that since their competitors get patents, they must get them as well for defensive purposes. This is the case with many companies who, although they do not like the idea of software patents, have to get them to protect themselves from litigation.
There is a fear that some large corporations want to use software patents against smaller competitors and open-source software. That would, in turn, make the whole software market much less competitive. Consequently, a small group of 'patent superpowers' would gain control over the software business.
In an interview with the BBC Bruce Perens (Linux) stated: 'We're looking at a future where only the very largest companies will be able to implement software, and it will technically be illegal for other people to do so. That's a very, very bad situation developing.'6
In conclusion, there is a need for a more open discussion and debate about the use of software patents where all parties have a fair right to put forward their views. We should not allow the big corporations to enforce the principle that 'might is right'. As Richard Stallman, President of the Free Software Foundation, said during a speech at Cambridge University regarding the campaign against software patents: 'The battle is not over. It still can be won.'7
