Compliance Toolkit

Patent absurdity

Richard Stallman Special to ZDNet.co.uk

Published: 20 Jun 2005 14:10 BST

If such a patent had existed in 1862 when Les Misérables was published, the novel would have infringed all three claims — all these things happened to Jean Valjean in the novel. Hugo could have been sued, and would have lost. The novel could have been prohibited — in effect, censored — by the patent holder.

Now consider this hypothetical literary patent:

Claim 1: a communication process that represents, in the mind of a reader, the concept of a character who has been in jail for a long time and subsequently changes his name.

Les Misérables would have infringed that patent too, because it also fits the life story of Jean Valjean.

These patents would all cover the story of one character in a novel. They overlap, but they do not precisely duplicate each other, so they could all be valid simultaneously — all the patent holders could have sued Victor Hugo. Any one of them could have prohibited publication of Les Misérables.

You might think these ideas are so simple that no patent office would have issued them. We programmers are often amazed by the simplicity of the ideas that real software patents cover — for instance, the European Patent Office has issued a patent on the progress bar, and one on accepting payment via credit cards. These would be laughable if they were not so dangerous.

Other aspects of Les Misérables could also have fallen foul of patents. For instance, there could have been a patent on a fictionalised portrayal of the Battle of Waterloo, or a patent on using Parisian slang in fiction. Two more lawsuits.

In fact, there is no limit to the number of different patents that might have been applicable for suing the author of a work like Les Misérables. All the patent holders would claim they deserved a reward for the literary progress that their patented ideas represented — but these obstacles would not promote progress in literature. They would only obstruct it.

However, a very broad patent could have made all these issues irrelevant. Imagine patents with broad claims, like these:

Communication process structured with narration that continues through many pages.
A narration structure sometimes resembling a fugue or improvisation.
Intrigue articulated around the confrontation of specific characters, each in turn setting traps for the others.

Who would the patent holders have been? They could have been other novelists, perhaps Dumas or Balzac, who had written such novels — but not necessarily.

It isn't necessary to write a program to patent a software idea, so if our hypothetical literary patents follow the real patent system, these patent holders would not have had to write novels, or stories, or anything — except patent applications.