Compliance Toolkit

Patent absurdity

Richard Stallman Special to ZDNet.co.uk

Published: 20 Jun 2005 14:10 BST

Patent parasite companies — businesses that produce nothing except threats and lawsuits — are growing larger.

Given these broad patents, Hugo would not have reached the point of asking what patents might get him sued for using the character of Jean Valjean. He could not even have considered writing a novel of this kind.

This analogy can help non-programmers to see what software patents do. Software patents cover features, such as defining abbreviations in a word processor or natural order recalculation in a spreadsheet.

They cover algorithms that programs need to use. They cover aspects of file formats, such as Microsoft's new formats for Word files. The MPEG 2 video format is covered by 39 different US patents.

Just as one novel could infringe many different literary patents at once, one program can infringe many different patents at once. It is so much work to identify all the patents infringed by a large program that only one such study has been done.

A 2004 study of Linux, the kernel of the GNU/Linux operating system, found that it infringed 283 different US software patents. That means each of these 283 different patents covers a computational process found somewhere in the thousands of pages of source code of Linux.

The text of the directive approved by the council of ministers clearly authorises patents covering software techniques.

Its backers claim the requirement for patents to have a "technical character" will exclude software patents — but it will not. It is easy to describe a computer programme in a "technical" way, the boards of appeal of the European Patent Office said.

The board is aware that its comparatively broad interpretation of the term "invention" in Article 52 (1) EPC will include activities so familiar that their technical character tends to be overlooked, such as the act of writing using pen and paper.

Any usable software can be "loaded and executed in a computer, programmed computer network or other programmable apparatus" in order to do its job, which is the criterion in article 5 (2) of the directive for patents to prohibit even the publication of programmes.

The way to prevent software patents from bollixing software development is simple: don't authorise them. In the first reading, in 2003, the European parliament adopted the necessary amendments to exclude software patents, but the council of ministers reversed the decision.

Citizens of the EU should phone their MEPs without delay, urging them to sustain the parliament's previous decision in the second reading of the directive.

© 2005 Richard Stallman. Verbatim copying and distribution of this entire article are permitted worldwide without royalty in any medium provided this notice is preserved.

Richard Stallman launched the GNU operating system (www.gnu.org) in 1984 and founded the Free Software Foundation (fsf.org) in 1985. Gérald Sédrati-Dinet devised the examples in this article