Patents

[Michael Rowan]

I have gotten enough replies about why we don't fight such patents in
court to warrant posting the League's view on software patents.  If
you are in agreement that software patents, such as the one Unisys is
trying to enforce, you should join the League for Programming Freedom.

\input texinfo    @c -*-texinfo-*-
@comment %**start of header
@setfilename patents.info
@settitle Patents draft: @today{}
@comment %**end of header 

@sp 7
@center @titlefont{Against Software Patents}
@center (draft)
@sp 2
@center The League for Programming Freedom

Software patents threaten to devastate America's computer industry.
Newly-granted software patents are being used to attack companies such
as the Lotus Development Corporation and Microsoft for selling programs
that they have independently developed.  Soon new companies may be
barred from entering the software arena, because the cost of licensing
the dozens of patents necessary for a major program will make such a
project economically impossible.

As programmers, we believe that if the United States Patent and
Trademark Office continues to grant software patents, we will soon be
effectively forbidden from writing programs that are useful.

@heading The Patent System And Computer Programs

The framers of the Constitution established the patent system so that
inventors would have an incentive to share their inventions with the
general public.  In exchange for divulging an invention, the patent
grants the inventor a 17 year monopoly on the use of the invention.  The
patent holder can license others to use the invention, but may also refuse to
do so.  Independent reinvention of the same technique by others does
not let them use it.

Until recently, patents were simply not used in the field of software.
Software developers would copyright individual programs, or make them
trade secrets.

Copyright was traditionally understood to cover the particular details
of a particular program; it did not cover the features of the program,
or the general methods used.  And trade secrecy, by definition, could
not prohibit any development work by someone who did not know the
secret.

On this basis, software development was extremely profitable, and
received considerable investment, without prohibiting the development of
new programs by others.

But this scheme of things is no more.  Software patents became legal in
the U.S. in 1981, and now enough time has elapsed for numerous patents
to be approved.

Many programmers are unaware of the change and do not appreciate the
magnitude of its effects.  Today the lawsuits are just beginning.

@heading Absurd Patents

The Patent Office and the courts have had a very difficult time with
computer software.  The Patent Office refuses to hire Computer Science
graduates as examiners, and in any case does not offer competitive
salaries for the field.  Patent examiners are often ill-prepared to
evaluate software patent applications to determine if they represent techniques
which have been previously used or are obvious---both of which are
grounds for rejection.

Their task is made more difficult because many commonly-used software
techniques do not appear in the scientific literature of computer
science.  Some seemed too obvious to publish, others seemed
insufficiently general.  Complicated assemblages of techniques have
often been kept secret.

And what is obvious to a programmer is frequently not obvious to a
patent examiner, many of whom view innovations in computer science the
same way as they see innovations in chemistry or biology.  Computer
scientists know many techniques that can be generalized to widely
varying circumstances.  Based on patents that have been awarded, the
Patent Office seems to believe that each separate use of a technique is
a candidate for a patent.

For example, Apple has been sued because the Hypercard program violates
patent number 4,736,308, a patent that describes nested scrollable
objects: windows that can scroll, containing tables that can
individually scroll, containing items that can individually scroll.
These three types of scrolling were all in use at the time that patent
number 4,736,308 was applied for, but combining them is now illegal.

Many well-known and widely used techniques have been patented.
Unfortunately, the granting of a patent by the Patent Office carries a
presumption in law that the patent is valid.  Patents for well-known
techniques that were in use for more than 10 years before the patent was
granted have been upheld by federal courts.

For example, the technique of using exclusive-or to write a cursor onto
a screen is well known, and has been used for decades.  (Its advantage
is that another identical exclusive-or operation can be used to erase
the cursor without damaging the other data on the screen.)  This
technique can be used in just a few lines of program, and a clever high
school student might well reinvent it.  But this, as well as other
important graphics techniques, is covered by patent number 4,197,590,
which has been upheld twice in court.

English patents covering customary graphics techniques, including
airbrushing, stenciling, and combination of two images under control of
a third one, were recently upheld in court, despite the testimony of the
pioneers of the field that they had developed these techniques years
before.  (The corresponding United States patents, including 4,633,416
and 4,602,286, have not yet been tested in court, but they probably will
be soon.)

Currently all companies who have developed spreadsheet programs are
being sued because of a patent 4,398,249, covering ``natural order
recalc''---the recalculation of all the spreadsheet entries that are
affected by the changes the user makes, rather than recalculation in a
fixed order.  This technique is very similar to the old artificial
intelligence techniques of antecedent reasoning and constraint
propagation, but we cannot rely on the courts to overturn the patent on
these grounds.

Nothing protects programmers from accidentally using a technique that is
patented---and then being sued for it.  Taking an existing program and
making it run faster may also make it violate half a dozen patents that
have been granted, or are about to be granted.

Even if the Patent Office learns to understand software better, the
mistakes it is making now will follow us into the next century, unless
Congress or the Supreme Court intervenes to declare them void.

However, this is not the extent of the problem.  Computer programming is
fundamentally different from the other fields that the patent system
previously covered.  As a result, even if the patent system were fixed
to operate ``as intended'' for software, it would still largely wipe out
the industry it is ostensibly designed to encourage.

@heading Why Software Is Different

Software systems are much easier to design than hardware systems of the
same number of components.  For example, a program of a hundred thousand
components might be fifty thousand lines long and could be written by
two good programmers in a year.  The equipment needed for this costs
less than ten thousand dollars; the only other cost would be the
programmers' own living expenses while doing the job.  The total
investment would be less than a hundred thousand dollars.  If done
commercially in a large company, it might cost twice that.  By contrast,
an automobile typically contains under a hundred thousand components; it
requires a large team and costs tens of millions of dollars to design.

And software is also much cheaper to manufacture: copies can be made
easily on an ordinary workstation costing under ten thousand dollars.
To produce a hardware system often requires a factory costing tens of
millions of dollars.

Why is this?  A hardware system has to be designed using real
components.  They have varying costs; they have limits of operation;
they may be sensitive to temperature, vibration or humidity; they may
generate noise; they drain power; they may fail either momentarily or
permanently.  They must be physically inserted in their place in the
machinery, and it must be possible to gain access to them to test or
replace them.

Moreover, each of the components in a hardware design is likely to
affect the behavior of many others.  Therefore, is it very hard to
figure out what a hardware design will do: mathematical modeling may
prove wrong when the design is built.

By contrast, a computer program is built out of ideal mathematical
objects whose behavior is defined, not merely modeled approximately, by
abstract rules.  When you write an if-statement after a while-statement,
you don't have to worry that the if-statement will draw power from the
while-statement and thereby distort its output, nor that it will
overstress the while-statement and make it fail.

Despite the fact that they are built from simple parts, computer
programs are incredibly complex.  The program with fifty thousand lines
probably has a hundred thousand parts, making it as complex as an
automobile, though far easier to design.

While programs cost substantially less to write, market and sell than
automobiles, the cost of dealing with the patent system is not less.
The same number of components will, in general, be likely to involve the
same number of possibly-patented techniques.

@heading What Is ``Obvious''?

The patent system will not grant or uphold patents that are judged to be
``obvious.''  However, the standard of obviousness that the patent
system has developed in other fields is inappropriate to the software
field.

Patent examiners are accustomed to considering even small, incremental
changes as deserving new patents.  For example, the famous
@cite{Polaroid vs.@: Kodak} case turned on differences in the number and
order of layers of chemicals in a film---differences between the
technique Kodak was using and those described by previous, expired
patents.  The court ruled that these differences were unobvious.

Computer scientists solve problems far faster than people in other
disciplines, because the medium of programming is more tractable.  So
they are trained to generalize solution principles from one problem to
another.  One such generalization is that a procedure can be repeated
within itself, a process known as nesting.  Nesting in software is
obvious to computer programmers---but the Patent Office did not think
that it was obvious when it granted the patent on nested scrolling, for
which Apple was sued.

Cases such as this cannot be considered errors.  The patent system is
functioning in software just as it does in other fields---but with
software, the result is outrageous.

@heading The Danger of a Lawsuit

Under the current patent system, a software developer who wishes to
follow the law must determine which patents his program violates and
negotiate with each patent holder a license to use that patent.
Licensing may be prohibitively expensive, as in the case when the patent
is held by a competitor.  Even ``reasonable'' license fees for several
patents can add up to make a project unfeasible.  Alternatively, the
developer may wish to avoid using the patent altogether; unfortunately,
there may be no way around it.

The worst danger of the patent system is that a developer might find,
after releasing a product, that it infringes one or many patents.  The
resulting lawsuit and legal fees could force even a medium-size company
out of business.

Worst of all, there is no practical way for a software developer to
avoid this danger---there is no effective way to find out what patents a
system will infringe.  There is a way to try to find out---a patent
search---but such searches are unreliable and in any case too expensive to
use for software projects.

@heading Patent Searches Are Prohibitively Expensive

In a system with a hundred thousand components, there can easily be
hundreds of techniques that might already be patented.  Since each
patent search costs thousands of dollars, searching for all the possible
points of danger could easily cost over a million.  This is far more
than the cost of writing the program.

But the costs don't stop there.  Patent applications are written by
lawyers for lawyers.  A programmer reading a patent may not believe that
his program violates the patent, but a federal court may rule otherwise.
It is thus now necessary to involve patent attorneys at every phase of
program development.

Yet such involvement only reduces the risk of being sued later---it
does not eliminate the risk.  So it is necessary to have a reserve of
cash for the eventuality of a lawsuit.

When a company spends millions to design a hardware system, and plans to
invest tens of millions to manufacture it, an extra million or two to
pay for dealing with the patent system might be bearable.  However, for
the inexpensive programming project, the same extra cost is prohibitive.

In particular, individuals and small companies cannot afford these
costs.  Software patents will put an end to software entrepreneurs.

@heading Patent Searches Are Unreliable

Even if companies could afford the heavy cost of patent searches, they
are not a reliable method of avoiding the use of patented techniques.  This is
because patent searches do not reveal pending patent applications (which
are kept confidential by the Patent Office).  Since it takes several
years on the average for a patent to be granted, this is a serious
problem: a company could begin designing a large program after a patent
has been applied for, and release the program before the patent is
approved.  Only later will that company find out whether its profits
will be confiscated.

For example, the implementors of the widely-used public domain program
@code{compress} followed an algorithm obtained from the
@cite{Communications of the ACM}.  Only later, when the program was in
widespread use, did the community learn that the authors had received
patent number 4,558,302.  Now Unisys is demanding royalties for using
this algorithm.  Although the program is still in the public domain, no
one is legally allowed to use it any more.  And using what you learned
from the journals is no longer safe.

In addition, the Patent Office does not have a workable scheme for
classifying software patents.  Patents are most frequently classified by
the activity they are used in, such as ``converting iron to steel;'' but
many patents cover algorithms whose use in a program is entirely
independent of the purpose of the program.  For example, a program to
analyze human speech might infringe the patent on a speedup in the Fast
Fourier Transform; so might a program to perform symbolic algebra (in
multiplying large numbers); but the category to search for such a patent
would be hard to predict.

You might think it would be easy to keep a list of the patented software
techniques, or even simply remember them.  However, managing such a list
is nearly impossible in practice.  The patent office has now granted
more than 2000 software patents.  In 1989 alone, 700 patents were
issued.  We can expect the pace to accelerate.

When you think of inventions, you probably call to mind revolutionary
inventions such as the telephone or magnetic core memory.  This is not
the standard that the patent system uses, however.  What we would
consider a minor cleverness or variation or combination of existing
techniques, they consider patentable.  This leads to a profusion of
obscure patents.

Any capable software designer will ``invent'' several such
improvements in the course of a project, and will say that they are
straightforward---hardly inventions at all.  However, the number of
avenues for such improvement is very large, so no single project is
likely to find any given one.  Therefore, the Patent Office is not
likely to classify them as obvious.  As a result, IBM has several
patents (including 4,656,583) on certain fairly straightforward,
albeit complex, speedups for well-known computations performed by
optimizing compilers, such as computing the available expressions and
register coloring.

Patents are also granted on combinations of techniques that are
already well known and in use.  One example is IBM patent 4,742,450,
which covers ``shared copy-on-write segments.''  This is a technique
that allows several programs to share the same piece of memory that
represents information in a file; if any program writes a page in the
file, that page is replaced by a copy in all of the programs, which
continue to share that page with each other but no longer share with
the file.

Shared segments and copy-on-write are very old techniques; this
particular combination may be new as an advertised feature, but is hardly
an invention.  Nevertheless, the Patent Office thought that
it merited a patent, which must now be taken into account by the
developer of any new operating system.

These sorts of patents are like land mines: your chances of running into
any one of them are small, but soon there will be thousands of them.
Even today it is hard to keep track of them, and a recent list published
by lawyers specializing in the field omitted some of these IBM patents.
In ten years, programmers will have no choice but to march on blindly
and hope they are lucky.

@heading Patent Licensing Has Problems, Too

Most large software companies are trying to solve the problem of patents
by getting patents of their own.  Then they hope to cross-license with
all the other companies and be free to go on as before.

While this approach will allow companies like Microsoft, Apple and IBM
to continue business, it will shut future companies out of the
marketplace.  A future start-up, with no patents of its own, will have
no choice but to meet whatever conditions the giants choose to impose.
And that price might be extremely high: companies currently in the
market have an incentive to keep out future competitors.  The recent
Lotus lawsuits against Borland and the Santa Cruz Operation (although
involving an extended idea of copyright rather than patents) show how
this can work.

Even a system of industry-wide cross-licensing will not protect the
software industry from companies whose only business is to buy patents
and then sue people for license fees.  For example, the New York-based
REFAC Technology Development Corporation recently bought the rights to
the ``natural order recalc'' patent, solely so that REFAC could sue
Lotus, Microsoft and other companies selling spread-sheet programs.
Contrary to its name, REFAC does not develop anything except lawsuits.
It has no financial incentive to join a cross-licensing compact.  The
exclusive-or patent is owned by another such litigation company,
Cadtrak, which is now suing Western Digital.

REFAC is demanding five percent of sales of all major spread-sheet
programs.  If some future program infringes on twenty such patents---and
this is not at all unlikely, given the complexity of a computer program
and the specificity of patents that have been recently issued---that
program will never be used.

To get a picture of the effects for yourself, imagine if each square of
pavement on the sidewalk had its owner, and you had to negotiate a
license to step on it.  Imagine trying to walk the entire length of a
block under this system.  That is what writing a program will be like if
software patents are allowed to proliferate.

@heading The Fundamental Question

According to the Constitution of the United States, the purpose of
patents is to ``promote the progress of science and the useful arts.''
Thus, the basic question at issue is whether software patents,
supposedly a method of encouraging software progress, will truly do so,
or whether they will instead hold progress back.

So far we have explained the ways in which patents will make ordinary
software development difficult.  But what of the intended benefits of
patents: more invention, and more public disclosure of inventions?  To
what extent will these actually occur in the field of software?

There will be little benefit to society from software patents because
invention in software was already flourishing before software patents,
and inventions were normally published in journals for everyone to use.
Invention flourished so strongly, in fact, that the same inventions were
often found again and again.

@heading In Software, Independent Reinvention Is Commonplace

A patent is an absolute monopoly; anyone who uses the patented
technique can be stopped, even if it was independently reinvented.

The field of software is one of constant reinvention; as some people
say, programmers throw away more ``inventions'' each week than other
people develop in a year.  And the comparative ease of designing large
software systems makes it easy for many people to do work in the field.

As programmers, we solve many problems each time we develop a program.
In the past, we would publish the important solutions in journals, and
forget the rest.  All of these solutions are likely to be reinvented
frequently as additional people tackle similar problems and try to do a
good job.

Today, however, many of these specialized solutions are being patented.
If you then rediscover it in the course of your work, you are headed for
a lawsuit that you cannot anticipate.

Meanwhile, the prevalence of independent reinvention negates the usual
justification for patents.  Patents are intended to encourage the
development of inventions and, above all, the disclosure of inventions.
If a technique will be reinvented frequently, there is no need to
encourage more people to invent it; since some of the developers will
choose to publish it (if it merits publication), there is no point in
encouraging a particular inventor to do so---and certainly not at such
a high price.

@heading Could Patents Ever Be Beneficial?

Although software patents are in general are harmful to society as a
whole, we do not claim that every single software patent is necessarily
harmful.  It is possible, though not certain, that careful study would
show that under certain specific and narrow conditions (necessarily
excluding the vast majority of cases) it would be beneficial to grant
software patents.

Nonetheless, the right thing to do now is to eliminate all software
patents as soon as possible---before more damage is done.  The careful
study can come afterward.

This may not be the ideal solution, but it is close, and is a great
improvement.  Its very simplicity helps avoid a long delay while people
argue about details.

Clearly software patents are not urgently needed by anyone except
patent lawyers.  The pre-patent software industry had no problem that
patents solved; there was no shortage of invention, and no shortage of
investment.

If it is ever shown that software patents are beneficial in certain
exceptional cases, the law can be changed again at that time---if it is
important enough.  There is no reason to continue the present
catastrophic situation until that day.

@heading Inventions Are Not the Important Thing

Many observers of US and Japanese industry have noted that one of the
reasons Japanese are better at producing quality products is that they
assign greater importance to incremental improvements, convenient
features and quality rather than to noteworthy inventions.

It is especially true in software that success depends primarily on
getting the details right.  And that is most of the work in developing
any useful software system.  Inventions are a comparatively small part
of the process.

The idea of software patents is thus an example of the mistaken American
preoccupation with the big invention rather than the desirable product.
Patents will reinforce this misdirection of American attention.
Meanwhile, by presenting obstacles to competition in the important part
of software development, they will interfere with development of quality
software.

@heading Software Patents Are Legally Questionable

It may come as a surprise that the extension of patent law to software
is still legally questionable.  It rests on an extreme interpretation of
a particular 1981 Supreme Court decision, @cite{Diamond vs.@:
Deihr}. at footnote{This information comes from a paper being written by
Professor Samuelson of the Emory School of Law.}

Traditionally, the only kinds of processes that could be patented were
those for transforming matter (such as, for transforming iron into
steel).  Many other activities which we would consider processes were
entirely excluded from patents, including business methods, data
analysis, and ``mental steps''.  This was called the ``subject
matter'' doctrine.

@cite{Diamond vs.@: Deihr} has been interpreted by the Patent Office as
a reversal of this doctrine, but the court did not explicitly reject it.
The case concerned a process for curing rubber---a transformation of
matter.  The issue at hand was whether the use of a computer program in
the process was enough to render it unpatentable, and the court ruled
that it did not.  The Patent Office took this narrow decision as a green
light for unlimited patenting of software techniques, and even for the
use of software to perform specific well-known and customary activities.

Most patent lawyers have embraced the change, saying that the new
boundaries of what can be patented should be defined over decades by a
series of expensive court cases.  Such a course of action will certainly
be good for the patent lawyers, but it is unlikely to be good for
software developers and users.

@heading One Way to Eliminate Software Patents

We recommend that Congress pass a law that excludes software from the
domain of patents.  That is to say that, no matter what might be
patented, the patent would not cover implementations in software; only
implementations in the form of hard-to-design hardware would be covered.
An advantage of this method is that it would not be necessary to
classify patent applications into hardware and software when judging
them.

People often ask how it would be possible to define software for this
purpose---where the line would be drawn.

For the purpose of this legislation, software should be defined by
precisely the characteristics that make software patents harmful:

@itemize @bullet
@item
Software is built from ideal mathematical components, whose inputs are
clearly distinguished from their outputs.

Ideal mathematical components are defined by abstract rules, so that
failure of a component is by definition impossible.  The behavior of any
system built of these components is likewise defined by the consequences
of applying the rules to its components.  

@item
Software can be easily and cheaply copied.
@end itemize

Thus, a program which computes prime numbers is a piece of software.  A
mechanical device designed specifically to perform the same computation
would not be software, since the mechanical device might fail if it were
not properly oiled, and would have to be constructed out of physical
objects.

There are areas of design which are between hardware and software in
some ways: for example, gate arrays and silicon compilers.  These will
fall on one side or the other of the line that is drawn.  If the line is
drawn as proposed here, based on the needs of the field, there is reason
to hope that these will fall on the side that is best.  However, these
in-between areas are comparatively small, and what really matters is to
solve the problem for the larger area of ordinary software as surely and
expeditiously as possible.

@heading What You Can Do

One way to help oppose software patents is to join the League for
Programming Freedom.  The League is a grass-roots organization of
programmers and users dedicated to preserving the freedom to develop
software that does what users want.  The League opposes software patents
and user interface copyrights, and advocates a return to the legal
system for software that existed a decade ago.

Annual dues for individual members are $42 for employed professionals,
$10.50 for students, and $21 for others.  We appreciate activists, but
members who have no free time to contribute are also welcome.

You can phone the League at (617) 243-4091, send electronic mail to
@code{league@@prep.ai.mit.edu}, or write to:

@display
League for Programming Freedom
1 Kendall Square #143
PO Box 9171
Cambridge, MA 02139
@end display

In the United States, another way to help is to write to Congress.  You
can write to your own representatives, but it may be even more effective
to write to the subcommittees that consider such issues:

@display
House Subcommittee on Intellectual Property
2137 Rayburn Bldg
Washington, DC 20515

Senate Subcommittee on Patents, Trademarks and Copyrights
United States Senate
Washington, DC 20510
@end display

You can write to your own representatives using the following addresses:

@display
Senator So and So
United States Senate
Washington, DC 20510

Representative Such and Such
House of Representatives
Washington, DC 20515
@end display

You can phone senators and representatives at (202) 225-3121.

@heading Conclusion

Exempting software from the scope of patents will prevent the patent
system from turning an efficient creative activity into something that
is prohibitively expensive.  Individual practitioners will be able to
continue work in their fields without expensive patent searches, the
struggle to find a way clear of patents, and the unavoidable danger of
lawsuits.

If this change is not made, it is quite possible that the sparks of
creativity and individualism that have driven the computer revolution
will be snuffed out.

@bye