Software Patents

By Michael Kay on October 02, 2008 at 02:18p.m.

The FFII (Foundation for a Free Information Infrastructure (FFII)) is lobbying again in the fight against software patents: there's a draft petition being created at to which I have added my comments. They won the last round in 2005, succeeding in blocking EU legislation to permit software patents, but it seems to have made no difference on the ground, as the European Patent Office continues to grant them at a rate of knots. Presumably the EPO is happy to take the fees and leave the courts to sort out whether the patents are actually valid or not.

I have absolutely no doubt that software patents are unquestionably a bad thing. It simply isn't in the public interest to grant them. The only possible reason for doing so is to reward and encourage innovation, and there is no evidence that they have that effect, and plenty of evidence that they do exactly the opposite. At the same time they endanger the livelihoods of many independent software developers like myself, because any time one of the big boys starts to feel that they've got a flea on their back, they can threaten litigation and the flea is effectively out of business: a small company can't afford to pay royalties, and can't afford to challenge a patent in the courts.

In any other area, of course, you can stay out of trouble by not breaking the law. But with patent infringement, there is no practical strategy for writing software that avoids violating patents - there are zillions of them out there, and even though they are searchable, the search will only succeed if by some coincidence the patent holder used the same terminology to describe the idea as you are using. It's not surprising I can't get insurance against patent infringement - the insurance companies know when they're taking on an impossible risk. I fork out dutifully for professional liability insurance which covers me for all sorts of things I would never dream of doing, like giving bad advice, and doesn't cover me against something that is entirely outside my control.

So in practice I just take the risk. I wrote a stylesheet yesterday that takes an XML tree as input and produces an SVG rendition of the tree as output. Has anyone done it before? Probably, but I had a look around and couldn't find anything suitable. Is it "obvious to one skilled in the art"? Who knows, it depends how skilled you mean. Has anyone patented it? Well, I could spend a day writing it, or a week searching patents.

It's interesting to see how dominated the US software industry is nowadays by lawyers. I have colleagues on standards groups who can't click "I agree" on the terms and conditions for the hotel's internet service without consulting their company lawyers first. At a more serious level, I regularly get questions from prospective users of the open-source version of Saxon about the fine print of the licensing conditions. One potential redistributor went through every line of the source code identifying names of contributors to the code (who in some cases only wrote half a dozen lines) because they wanted evidence that the author and their employers had signed in blood to release the code. In the end I just have to tell people to take it or leave it: it's free, if you don't like it, you don't have to use it. A lot of this goes back of course to the SCO fiasco where fragments of UNIX code had passed through so many hands that tracing their origin and preventing them getting into bits of software with the wrong licensing conditions was virtually impossible. That's a copyright issue, of course, rather than a patent one, but it's part of the same malaise. On copyright, I have always been very careful only to do things that I'm allowed to do, but I have often been careless in protecting my backside by retaining detailed records.

There's an interesting article written a year ago which I would have dismissed at the time as absurdly alarmist: it predicts financial meltdown in 2008 caused by bad assets in three areas: consumer credit, mortgages, and intellectual property. Well, the first two have hit us, I wonder if the third is real too? I wonder how much of the piling up of patent portfolios is driven by the effect on invisibles in the balance sheet? Until recently I had assumed that the real driver was the combination of managers wanting to avoid risks and lawyers making their living by discovering risks. But perhaps there's more to it than that.

I'm sure that the long-term effect will be to move innovation to countries like India and China where the lawyers exert a less oppressive influence. It's paradoxical that in the West, where we pride ourselves on following free market principles, we should be so constrained by a patent system which goes against all those principles by granting monopolies on intellectual ideas.

Meanwhile, I write software because it's a creative activity that I enjoy, and I will continue to do so until the lawyers stop me.