Main Argument:
Software should not be
patentable because it
discourages progress and
innovation in the field.
"...There is absolutely no evidence, whatsoever—
not a single iota—that software patents have
promoted or will promote progress...”
-Jim Warren, 1994, creator of the Computers, Freedom and Privacy
Conference
What is a Patent?
• “A copyright is typically obtained on an
entire computer program… Patents are
obtained on innovative ways of doing
things, and thus a single program might
implicate hundreds of them.”
-Fortune Magazine
• Software patents cover specific algorithms
and techniques which tell a computer how to
perform a specific task.
Software patents are used by large companies
to crush their competition. This creates
monopolies and prevents small companies
from progressing in the economy.
• “A future startup with no patents of its own will be forced to
pay whatever price the giants choose to impose. That price
might be high. Established companies have an interest in
excluding future competitors."
– Bill Gates, 1991
Example: Blackboard, Inc. vs. Desire2Learn, Inc.
•Blackboard owns 80% of the course-management software
market in the U.S..
•Blackboard sued Desire2Learn for violating its patent rights on
e-learning software.
•Blackboard was awarded $3.1 million for this patent
infringement.
While software patents are under review for
approval, others can develop software
programs which can infringe on the rights of
the future patent.
• "Because it is impossible to know what patent applications are in
the application pipeline, it is entirely possible, even likely, to
develop software which incorporates features that are the subject
of another firm's patent application.”
-Mitch Kapor, 1994, Founder of Lotus 1-2-3
• Example: Apple and Starbucks sued over custom music gift cards
• A Utah couple claims to have patented a utility dubbed RPOS, or retail
point of sale, which is used in Internet merchandising.
• Apple created a similar concept for its iTunes cards while the patent
was under review.
•Starbucks is being charged as a complicit partner in this patent
infringement.
The legal actions involved in filing claims
on patent infringement create wasteful
expenditures for both sides.
• "...The time and money we spend on patent filings, prosecution,
and maintenance, litigation and licensing could be better spent on
product development and research leading to more innovation...“
– Robert Barr, 2002,Cisco Systems Intellectual Property Department
• The process of conducting a patent search is very time consuming.
• Software companies must constantly update their programs.
• Software patents slow this process down because time is spent
avoiding patent infringement.
• Patent searches can cost up to tens of thousands of dollars.
• US Patent Office: 27,239 active, licensed patent attorneys
• Gerald D. Hosier, named highest paid attorney with a salary of $40
million in 2000 by Forbes magazine
Existing copyright laws on software are
efficient in protecting infringement.
• “Software is already protected by copyright law, and
there’s no reason any industry needs both types of
protection.”
• A Patent Lie, New York Times, 2007
• Example: Oracle Corporation opposes the patentability of
software.
• The world’s second largest software company
• They believe that the existing copyright laws and available
trade secret protections on software are better suited to protect
computer software developments, compared to patent laws.
• Copyright protection is typically much easier, less expensive and
less time consuming to obtain.
• It is easier and cheaper to prove copyright infringement
compared to patent infringement.
Software patents discourage innovation
in software production.
• “It is telling programmers that they may not use a particular
method for solving a problem without the permission of the idea’s
“owner.” Patenting an algorithm or technique is like patenting a
series of musical notes or a chord progression, then forcing
composers to purchase a “musical sequence license.”
-Why Patents are Bad for Software, 1991
• Software patents are placed on specific algorithms and
techniques.
• However these can be used in a large number of
programs.
• There is a high probability of patent infringement when
developing a new program.