Software Patents vs. Free Software
Bruce Perens <firstname.lastname@example.org>
The opinions in this document are mine, not
those of my employer.
There's been a lot of press about my activities regarding software patents
and the summit meeting that I've called on Free Software and The Law.
Since the press tends to simplify things and sometimes misinterprets
them, it's time for me to talk about the situation of Software Patents and
Free Software in my own words.
The original letters patent were the orders of a king. These early
legal documents were often used to grant special privileges to the kings
friends. Many letters patent granted a monopoly in a particular business
to one family, forever. Anyone else who went into the same business
would have been defying the orders of the king, so off with their heads!
The U.S. is important to this discussion because it's the cradle of
and business-method patents. Most other nations don't allow such things to
be patented, although certain companies are lobbying to change that. U.S.
law, being a descendent of British Common Law, has preserved the patent,
though in a more limited sense than its royal application. The Constitution
of the United States states:
Congress Shall Have Power To [...] promote the
of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
This is the entire justification for the existence of the U.S. copyright
and patent system. Both exist to promote
and the useful arts
: technology, literature, and so on. If the
and copyright system do not
have the effect of promoting progress,
they aren't constitutional. Note that the constitution also says limited
Patents and copyrights are meant to expire
- if they
they aren't constitutional.
So, we might consider whether or not software patents are
promoting progress, or if they might even be hindering it. Surprisingly,
there is no
hard evidence that software and business method patents
promote progress. There don't seem to be any good scientific studies on
The U.S. patent system rewards an inventor with a temporary monopoly on
invention, in exchange for full public disclosure of the invention. This
is supposed to be an incentive for inventors to disclose their work instead
of keeping it secret. The Free Software paradigm seems to be a better way
of getting people to disclose their software ideas than a monopoly grant.
Perhaps that alone is sufficient reason for a critical re-examination of the
idea of software patents.
When a patent expires, after 20 years, the invention goes into the public
domain, which means that it's everyone's property. Thus, you can use the
of an expired patent for free, you won't have to pay the inventor a royalty.
You are only allowed to patent something that you really did invent, that
hasn't been publicly used or disclosed before. In the U.S., you get a year
to file your application after you create an invention. There are big
for lying on your application, for example, for falsifying the date of an
Large companies like HP most often use patents defensively.
they know that other companies will apply for patents and then sue for
infringement, a company that wants to defend itself files its own patents
to use against its competitors. This creates a détente
the company and its competitors - each could sue the other in a similar way,
so neither one does. The competing companies generally enter a
licensing all of each others patents. Each company thus
nullifies the other company's power to sue over its patents. Large companies
are generally cross-licensed with many other large companies, including
own competitors, and thus their power to sue each other over patent
is mostly nullified.
So, since the big companies patents all are used to nullify each other,
the patents really have zero value to the companies. Why, then, do they
bother with patents at all? I think the primary reason is a typical feature
: if you stop behaving offensively before the
guys do, you lose. If one large company stopped filing new patents, the
other companies would no longer have a reason to cross-license with that
company, and then the other companies would start filing patent-infringement
There are a few other reasons that large companies continue to file
some of them want to use them to fight a competitor who isn't
for example a Free Software developer who writes a competing program. Some
of them use patents to give investors an impression that the company has
However, the vast majority of software patents, some say as high as 95% of
them, are actually invalid due to the existence of prior art.
art means that someone else has invented the same thing before, and has
or disclosed the invention in some way, thus invalidating all future patents
on that invention. Because software patents are so often invalid, the
is being deceived. When I've taken this up with companies who are looking
for investment and list their patents as major assets, I usually get
an answer like yes, we know that is a problem for software patents in
general, but ours are enforcible.
So, who profits from all of this if the large companies don't? Not the
and individual inventors, they can't afford to sue to collect on their own
patents. The system does keep a lot of patent lawyers in business, costing
companies Billions every year. It may also keep some research scientists in
business, since companies sponsor research departments so that they can have
a steady flow of inventions upon which to file patents.
Of course, getting companies to sponsor research is a good thing, and you
might even think it justifies the patent system. However, wouldn't it be
if the research was targeted to benefit the company and its customers rather
than to provide ammunition for an eternal stalemate of a patent war? And
wouldn't it be better if the inventions of publicly-funded research
like universities were in the public domain, since the public has paid for
them? Instead, they are tied up with patents and sold. Some universities
that they need to be able to sell that patent monopoly, or they won't be
able to entice anyone to develop their ideas commercially. Although this is
a dubious claim, a U.S. law actually mandates
patenting as part of
the "technology transfer" of publicly-funded research.
A trend over the past decade has been a new kind of patent parasite
company that exists only to sue other companies. The parasite buys up
and then files infringement lawsuits against other companies with deep
and a lot to lose. The parasite offers licensing terms of a few tens or
hundreds of thousands of dollars, versus a cost of Millions for the victim
to successfully defend themselves in a lawsuit. The victim generally caves
in and pays the license fee, even though they could eventually have proven
the patent to be invalid in court. So, this is another tremendous drain of
company funds caused by the patent system. Parasites don't enter
agreements, so they represent one of the worst offensive uses of
The cross-licensing defense works well if you have a lot of patents to use
as ammunition, as a large company might, but the Free Software community
has only a handful of patents held by a few individual developers, and thus
ends up being an innocent bystander injured by a war of giants. Since it
costs tens or hundreds of thousands of dollars in legal fees to successfully
file an enforcible patent, we don't expect to get many more of them. So,
scratch the cross-licensing defense for now.
Since most software and business method patents are actually invalid, why
don't we just prove that in court? It often takes Millions of dollars and
years of time to win a single patent case. I don't know many Free Software
developers who could afford to fight even one patent, and we are faced with
hundreds of thousands of them.
Then, why don't we just "fix" the patent system? Well, the best way of
it might simply be to dispose of software and business method patents
but most of the proposals to "fix" the patent system simply try to make
the problem only a little bit better. For example, there are plans to
patent examiners with more prior art so that they will reject more of the
invalid patents, but not nearly enough to solve the problem. Such proposals
can only be treated as interim strategies, poor defenses to tide us over
until we can really solve the problem.
Arguments for killing software and business patents abound:
Of course there's the argument that software and business patents don't
help advance science and the useful arts, and thus are constitutionally
Another argument is that the software patents are all on applications of
a versatile hardware device called a "computer", and that the computer, as
a hardware device, is the only part that should have been patented.
Yet another argument is that the 20-year term of software patents is
much longer than the useful lifetime of the invention. This circumvents the
constitutional requirement that patents have a limited term, because the
invention is so obsolete as to be without any remaining value at all by the
time it reaches the public domain. It's easy to see this, since a
of computer technology is only a few years long. 20 years is infinity
to the speed of computer technology development or the lifetime of a
An argument against business method patents is that the monopoly they can
create on a particular form of business could be in violation of anti-trust
And of course an argument against the acceptance of software and
patents in other countries than the U.S. is that this would constitute a
Those countries would just take all of their patent
and send them to the U.S.A., where the software and business-method patent
owners are today.
But the best argument for this
essay is that software patents block
Free Software development. Today, they are a nuisance, tomorrow they could
be much more. There are companies that see Free Software, especially
as an interloper to be shut down, a competitor to be eliminated. Some of
companies have increased the rate at which they file new patents. It's not
impossible that these companies and their business partners could start
after Free Software developers, en masse,
with patent infringement
lawsuits. Since essentially none of us can afford to defend ourselves, most
developers would be forced to cave in, withdraw their software, and stop
in Free Software development. We must be ready with a defense, before that
Ironically, some of the biggest patent holders are the Free Software
own partners, companies like IBM and HP that have aggressively incorporated
GNU/Linux into their business plans and expect significant revenue from it
before long. IBM is said to hold 10% of software patents, and HP is one of
the largest patent holders in general. It's important for us to start a
dialogue with these and other partners. That's why I am calling a summit
meeting on Free Software and The Law.
Patents will be a full-day
topic, with DMCA, UCITA, license law, and other legal issues covered on a
subsequent day. Unfortunately, this isn't a public meeting. When asked about
that, Richard Stallman said inviting a public audience to a negotiation
isn't the best way to get an agreement.
However, I've invited a broad
slate of Free Software representatives, covering all of our various
and will invite a few more.
The meeting will simply be a discussion and a negotiation, none of it is
set in stone, but there are some things that the Free Software community
representatives might be likely to ask for. For example, we might ask for
some assurance that our corporate partners aren't going to sue us. When
Raymond and I asked this of an IBM representative recently, the answer was
we're not prosecuting our patents against Open Source developers.
HP hasn't sued any of us either, although they haven't stated their policy
in so many words. But perhaps the Free Software developers, enthusiastic
of IBM, HP, and other companies, deserve a little more formal assurance of
that policy and its continuation.
Another issue we might discuss is how to defend a Free Software developer
when he or she is sued for patent infringement. It might be fair to ask our
partners, who have much deeper pockets than ours, to help vest a fund for
our defense with an organization like FSF or EFF. Or perhaps we should deal
with each lawsuit as it comes up? With the DeCSS lawsuits, we found that
EFF can defend less than one case per year. We'll need more than that.
Since our software has proven so useful and effective in our partner
I think the Free Software community would be negotiating from a position of
strength. We've proven our worth to our partners, and now we deserve to
how far they'll go for us. Hopefully, that will come out in the summit
So, you can see that we have a lot to talk about, both at the summit and
in the Free Software community in general. The summit is being held on
31 and September 1, in San Francisco, immediately after the LinuxWorld
there. Thus, many of the key players will be in town. HP has generously
enough funds to provide the meeting facilities and catering, and to cover
travel and lodging of some free software representatives who can not pay
their own way. HP says they are open to having equal co-sponsors, so that
the conference won't appear to be predominantly HP's. SSC has promised to
cover travel and lodging expenses for Richard Stallman, and other
will probably step up before the meeting.
I hope I've cleared up some mis-perception of what I've been working on,
and if this essay has been educational for you, I consider that an
in itself. Of course, I'm open to your ideas. If you have comments or
please feel free to write me at email@example.com
or use the phone number listed on my web site.
A master copy of this document, with redistribution permitted, is here.
Bruce Perens' web site, featuring his bio and other articles.