Software patents: time for change
by Dennis and Stephen Adams
The following article was written jointly for ITNOW - the British Computer Society professional journal
At the heart of the copyright or patent debate is our underlying answer to the question 'What is Software?' Do we think of it as something akin to a book (which is an original work), or a tangible invention like a car?
This is very significant, because copyright law is most appropriate when we are dealing with specific and original one-off creations (as in a book), whereas patent law enables you to protect not merely the exact embodiment of an invention, but some of the surrounding ideas as well.
At first sight, it would be appear that software (ie source code) consists of just another form of words, and that copyright law should continue to be the primary form of protection.
However, think of the analogy of the car: What are you interested in protecting: the inventive aspects of the car itself, and what it does, or just the engineering drawings? Obviously, the key issue is the actual intellectual ideas themselves, no matter how they are formulated.
For example, suppose someone developed the idea of a simple multi-user operating system that used a tools approach to utilities, ie use re-direction and filters to link together building blocks. It does not really matter which programming language was used to implement this approach (C, C++, Assembler...). The key point is that the concept itself is what differentiates it from any similar systems.
Both copyright and patents provide a measure of protection for the author or inventor of the product. This grants him/her a form of temporary monopoly, for a specific period of time, during which they can exploit the value of their intellectual property, and gain benefit from it. At the end of this period, the product becomes public property.
However, if protected by patent law, the owner would be protected for a much shorter period of time. With patent law today, that period is usually a maximum of 20 years.
With copyright, on the other hand, the period of protection is 70 years beyond the author's lifetime, an eternity in the life of software.
If we take the example of MSOffice and OpenOffice, we can see how these approaches would differ in practice. These two products look and feel very similar. Microsoft is obviously keen to protect its innovation and market share, whereas the open source community would like to see wider availability of Office functionality. It is our contention that both these interests would be better served by an application of patent law rather than copyright law.
On the one hand, patent law would give Microsoft a much stronger legal protection than currently, because it would be based on the similarity of function, not on how the product is programmed.
On the other hand, patent law would be for a shorter period, after which Microsoft would lose all protection, and allow other companies to freely copy the functionality. It is commonly accepted that software is not best served by excessive protection periods.
Indeed, some authorities have advocated devising a special sui generis right for software, with a protection term even shorter than that offered by patents. In fact, this limited protection is much closer to the way software development happens these days.
Typically, a vendor gets an idea, develops it, and gains legal protection for their intellectual property over a period of time. Once they have exploited the idea for some time, it becomes mainstream. In the case of many products, their uniqueness disappears, and they become open source.
It's time for us to recognize that the real value of software is the idea, not the code, and ideas should be protected by patents, not by copyright.
Dennis Adams MBCS CITP is an IT consultant with over 20 years experience, who specializes in practical IT management issues. He can be contacted via his company website at www.dennisadams.co.uk.
Stephen Adams is managing director of Magister Limited, which provides a consultancy service in the area of patent documentation information. The Magister website is www.magister.co.uk.
The contents of this article are protected by the laws of Copyright, © Dennis and Stephen Adams, 2005.
More references
If you are interested in the argument against patents, you may find some interesting reading in Bust Patents (www.bustpatents.com) which calls itself a website for "legal resources and tools for surviving the patenting frenzy of the internet, bioinformatics, and electronic commerce."
In fairness, the main concern of this website is the abuse of the patent system, rather than the idea of patents themselves.
Some recent press developments
Microsoft is launching an appeal in Eolas Technologies' case over disputed Intellectual Property in its Internet Explorer (IE) browser, despite a court's ruling this month that threw out an earlier Eolas' victory.
The company has asked the US Court of Appeals to overturn the section of the Eolas claim, covering overseas sales of IE, which was not reversed when a court this month ordered a retrial of the original case.
In a bizarre twist, the software giant is arguing that US patent laws should not apply to so-called gold master disks of software programs that are used by foreign computer makers to install software.
Attorneys acting on Microsoft's behalf claim that code on the golden master is a set of instructions, like a blueprint, and therefore not a component of a patented US invention.
Source: Computergram International, March 23 2005
Microsoft's senior legal counsel Brad Smith called for a reform of the US Patent and Trademark (USPTO) system.
Among his criticisms, Smith said the current system does not allow for full disclosure of existing patent ownership and he called for an administrative process to help resolve disputes, so companies such as Microsoft can avoid the costly court-based system.
Source: Computergram International, 24 March 2005.