EFFI’S POSITION ON SOFTWARE PATENTS

The European Parliament is processing a proposal for a
directive that concerns the patentability of computer
software. Electronic Frontier Finland ry (EFFI) hopes that the Finnish
MEPs would take an active stand on the directive in order to reach a
reasonable compromise that would not threaten the existence of small
and medium enterprises while not sacrificing the competitiveness of
global European companies such as Nokia. EFFI thinks that the best
result can be achieved by formulating the directive in a manner that
sets connection to the phenomena of the physical world as a
precondition to patentability. This would allow protection of consumer
electronics and devices while removing unnecessary legal risks from
companies that work solely on the field of software production.

EFFI hopes that the respected recipients would give their full support to the
changes the Committee on Culture and Education and the Committee on Industry
have suggested to the Commission draft that are not present in the current
report of Committee on Justice.

Background

The European Patent Office (EPO) has already given patents to computer
implemented inventions – possibly against the European Patent Convention. The
National Board of Patents and Registration of Finland (NBPR) decided to begin
accepting patents on computer implemented inventions on 14 February 2003 –
possibly against the law – while the directive is still being processed in
Brussels.

Computer implemented patents are often practically equivalent to software patents

According to the European Patent Convention and the Patent Law a computer
program or a mathematical theorem can’t be patented “as such”. As a clarifying
example, it means that the Pythagoras’ theorem that can be used to compute the
distance between two points can’t be patented “as such”.

According to the interpretation of EPO and NBPR, however, the
practical implementations of a computer program or a mathematical
theorem can be patented. In the case of the previous example it would
mean that all possible implementations of the Pythagoras’ theorem
(e.g. computing the distance between two points on a computer screen)
would be patentable. In computer science research such fundamental
mathematical theorems are still found. Although a computer program or
an algorithm can’t be patented “as such”, all reasonable
implementations would be patentable, which leads to the same result if
the programs or theorems were directly patentable.

A clever patent lawyer will cover a software patent as a
computer implemented innovation, using words such as “process” and
“system” to artificially satisfy the requirements of industrial
application and technical nature. This is how the law is currently
circuimvented.

Software patents are obfuscated

Software patents are written in obfuscated language that
computer science professionals find hard to understand. The claims are
often ambiguous and far reaching. Working programs are not required as
reference implementations. For these reasons the software patents are
of no use to programmers. Companies rarely encourage programmers to
examine patents, more like the opposite. Examining patents is of very
little use to programmers and on the other hand it is also better if
the programmers don’t have to consciously violate patents.

Patented programs are often obvious to professionals

Even the software patents granted by EPO are often protecting
ideas that are obvious to the computer science professionals. The most
common patent is a small advancement in a narrow field of specialty
that is obvious to the professionals of computer science. The
reference [EPO] includes examples of questionable computer implemented
patents the EPO has granted.

Software patents are used to stifle competition

Because the software patents granted by the EPO are often
simple and obvious to the professionals of the field, a typical piece
of software can violate several patents without the knowledge of the
programmers writing the software. Patents are therefore used as tools
of fear and trade. Companies with a large patent portfolio can prevent
a competitor from entering the market by claiming that the product of
the competitor is in violation of several patents of the company. In a
similar fashion such companies often defend themselves against patent
infringment claims by pointing out that the other party is also in
violation of their patents.

Software patents favor established and often large corporations
that have had resources and time to collect software patents and
defend their interests in court in the expense of new innovative
companies and open source projects. Some large corporations have even
stated that producing software is relatively more expensive to them
than it is to others. If this statements holds true, why should the
society favor their less efficient way of producing commodities?

It is worth of noticing that the open source software of great
commercial importance (e.g. Linux) cannot contain parts that can’t be
used freely without royalties. As an example, the development of free
multimedia applications has been so far succesful only because the
development community is international and software patents are not
recognized throughout the world – for now.

Allowing software patents will not increase the growth
potential of small and medium enterprises like some companies using
lots of patents claim, rather, it forces them to participate to arms
race where the adversaries are already holding a huge patent
portfolio. The open source developer community can’t participate in
this race at all leaving them to the mercy of mass patenters.

Software patents are a growing problem

Software patents have been a difficult problem in the United
States for a long time. According to empirical research patents in the
area of software production have nothing to do with innovative
activity [INN]. Unlike in a working patent system, patents are not a
measure of state of the art in the software industry. The society does
not benefit from the publication of the information in the patents
because the published “inventions” are often outdated even before the
patent protection is granted; also, it is common that they are not
technically exploitable (the describing language is obfuscated and
there is no reference source code). Patents in the software industry
are only pieces in a strategic game. The sheer quantity of patents
becomes more important and the actual content loses its
significance.

The vast quantity of patent applications makes the safety
mechanisms of EPO useless: regardless of the technical excellency of
the patent databases, only few can afford to hire enough competent
staff to wade through the tens of thousands of annually granted
patents and write complaints of those that are believed to be prior
art. Unlike developing widely useful programs, that is work nobody is
willing to do on voluntary basis.

Innovative activity concerning software products is somewhat
different from other technical fields of industry: technical
compatibility and open technical standards are in an important
position in software products [EGOV]. That is why one commercially
strategic patent at the wrong place can halt the technical development
of software in a greater scale that would be reasonable for the
society.

A typical piece of software is composed of a greater number of
“building blocks” than more traditional technical devices for which
the patent system was originally designed. Therefore even a small
program written by a single individual can violate several
patents. Instead of using the obvious, efficient and patented way of
solving a problem, the patented building block may have to be replaced
with a significantly less efficient alternative (see e.g.
[EFFECTS]).

As an example, many purposed multimedia standards include
algorithms with hidden patents. Patents are harming the development of
programs that support the standards. The corporation possessing a
patent may demand royalties from individual developers and users
afterwards – it doesn’t matter whether the program is distributed for
free or for a fee. This scenario has actually been seen in software
related patent fights in the United States where a company has
uncovered an old patent dating back many years and started charging
royalties [GIF, MP3, JPEG]. Developers have not either been aware of
the patent or the idea covered by the patent could have been
previously used without any royalties.

In the case of computer software the duration of the patent is
a very significant factor due to the fast development of the
industry. The monopoly can last far longer than the patented
technology is useful. The considerably longer period of copyright
protection does not cause similar damage because the impact of the
copyright is more narrow than that of the patent: copyright will
protect only one form of implementation while the exclusive right of a
patent covers all implementations of a certain idea.

Copyright provides sufficient protection for computer programs

Although an investment to a computer program may be large, it’s
composed differently than for many other products. The most expensive
part is to test that the program will work reliably in all situations
and fix the discovered programming errors related especially to the
details of the program code instead of the ideas. Without the right to
use the same program code the competitors will have to do this testing
by themselves. The copyright protects the program source code and thus
the most essential part of the investment.

Software patents have been granted in United States for a long
time. However, this can’t be used as an excuse to introduce software
patents to Europe – which would be reasonable only if software patents
were demonstrated to create more benefit than harm. Currently nothing
prevents European companies from patenting their programs in the
United States should they wish to do so, and in return, the American
patents do not give anyone outside EU any advantage in Europe.

EFFI considers the copyright to be a sufficient legal instrument
to defend
the rights to computer programs.

Afterwords

The final form of the directive is not yet known. At present it
is not clear what kind of changes will be suggested before the plenary
session. Therefore we are yet unable to give an exact list of
changes we recommend. We are, however, ready to assist in any possible
way in order to reach a reasonable end result and to maintain a
dialogue about the final form of the directive.

With co-operative regards,

Ville Oksanen
Master of Laws
Vice Chairman, Electronic Frontier Finland ry
ville.oksanen@effi.org
040 536 8583

Kai Puolamäki
Doctor of Philosophy
Member of the Board, Electronic Frontier Finland ry
kai.puolamaki@effi.org
050 522 8111

References:

[EPO] Examples of questionable software patentes, granted by EPO: http://swpat.ffii.org/patents/samples/index.en.html

[INN] J. Bessen, R. Hunt, “Empirical Look at Software
Patents”, 2003, http://www.researchoninnovation.org/online.htm.

[EGOV] Open standards are important for e.g. functional
electronic governmental services. See for example:
Commission of European Communities, “Linking up
Europe: the importance of interoperability for e-government
services”, 2003.

[EFFECTS] Software Patent Work Group @ FFII, “Software
Patents in Action”, http://swpat.ffii.org/patents/effects/.

[GIF] League for Programming Freedom, “Burn All GIFs”, http://burnallgifs.org/.

[MP3] Software Patent Work Group @ FFII, “MPEG-related
patents on compression of acoustic data”, http://swpat.ffii.org/patents/effects/mpeg/index.en.html.

[JPEG] Software Patent Work Group @ FFII, “Lossy Compression
(JPEG et al) patents”, http://swpat.ffii.org/patents/effects/jpeg/index.en.html;
Wired News 19.7.2002, “JPEG Patent Claim Sparks Concern”, http://www.wired.com/news/business/0,1367,53981,00.html.

Electronic Frontier Finland – EFFI ry was founded in 2001 to
defend active users and citizens of the Finnish society in the
electronic frontier. EFFI influences legislative proposals
concerning e.g. personal privacy, freedom of speech and user rights
in copyright law. We make statements, press releases and
participate actively in actual public policy and legal discussions.
EFFI has been featured in the national media including TV,
radio and leading newspapers. EFFI also works in close cooperation
with organizations sharing the same goals and values in the Europe,
United States and elsewhere. EFFI is a founding member of the European Digital Rights and a member of
Global Internet Liberty
Campaign. More information from EFFI’s home pages: http://www2.effi.org/