More than you even wanted to know about software patents... and then some
So recently for my English class I had to write a research paper. We were allowed to select our own topics. I selected software patents. Here is my four and a half page paper about them:
Software Patents:
Ownership of ideas?
Nearly every week, software patents threaten a different piece of free, student-produced software offered through websites. Soon afterward, these sites lose their legal battle against patent legislation and are forced to stop offering their products due to patents owned by commercial companies. These websites trespass onto one of the most controversial of property protection laws known as "intellectual property laws" or "patents." The government guarantees patents, which allow the inventor of an idea to be the sole person to make, use, and sell that concept. Now that definition is being re-evaluated because it poses the question: can one own ideas? Or is it a public right to have all ideas be open and free-flowing? Today the debate rages on and has become even more pressing as software becomes easier to steal through the Internet. It is important to evaluate why the copyright and patent laws exist as they do today, and why the controversy surrounding these two questions has arisen.
A question of how one can protect one’s “right” to an idea without stopping progress and development has been an issue since the drafting of the constitution. The Founding Fathers understood the importance of free flowing information, but they also knew that there needed to be an incentive to creators. “Thomas Jefferson, a prolific writer and inventor who presided over the granting of America’s first patents, argued that when someone took his idea, he himself was left intact, ‘as he who lights his taper at mine receives light without darkening me’” (S. Clark 8). The original copyright laws were defined very clearly as a right to individuals, not government granted monopolies to a product. Unfortunately, the actual definition behind “patent” is much less well-defined. A copyright protects an author’s right to the exact version he or she made. A patent actually gives the creator the right to own the method that produces a specific product, or a specific process that a piece of software implements.
During the nineteenth century it became abundantly clear that copyright law needed refinement. The concept known today as “fair use” came into existence due to arguments throughout the nineteenth century because of intellectual property theft, but this concept did not pass into law until 1976. “Fair use” is the idea that a piece of work can be used as long as credit is given to the original author. The copyright law also came to cover translations in the latter half of the century, which made all copyrights internationally recognized. During this time, copyright also came to cover music, engravings, dramas, and photographs. Several small changes came about in the first half of the twentieth century, mostly involving motion picture copyright clashing with the right to free speech. But in 1960, the photocopier came into existence and raised a huge number of questions about copyright. The “rule of fives” compromise came about as a result of this, which stated that copiers had to compensate a publisher for every copy more than five made within five years. The final major revision made to copyright law was made in 1976. It was by far the largest revision of copyright law since its creation, and these revisions defined the principals of “fair use” and extended the length of copyrights dramatically (S. Clark 8-10).
Many companies depend on copyrights and patents to provide financial incentive for individual inventors. IBM (International Business Machines corporation) is the largest holder of software patents in the world. The entire business strategy for IBM is to innovate and then get patents for their profitable ideas. Then they simply charge a small fee for anyone who plans on using a piece of software or hardware based on (or that implements) a technology IBM has patented. In one tech writer’s words: “it has been an axiom of the high-tech era that patents are a benchmark of innovation… applications for U.S. patents alone have surged 64% over the past decade to more than 270,000 a year” (Buerkle 22). This has been the strategy of almost all companies: innovate, patent, and profit.
In some countries the lack of a patenting process has been a serious issue. In the European Union (EU) this has been a more serious problem than in most areas of the world. “Ireland is among the strongest advocates of an EU software patent, which big computer firms say is necessary to create legal clarity within the industry” (Smyth 21). Without the clout that a software patent gives a company, it becomes very hard to defend an investment in the creation of a piece of software. Many people believe that “the idea of a single patent, legally valid throughout the EU, should be a ‘no brainer,’” because of the fact that patents are so necessary to the development of new software (“Absurd” 20).
Unfortunately, the fact remains that “it’s one thing to say, ‘I invented the technology to do it.’ It’s another thing to say, ‘I invented the concept’” (Buerkle 22). Many companies have taken advantage of this “ownership” of ideas by patent things that they did not create or that are broader than they need to be. A good example of this overstepping of boundaries is Smuckers’ patent on the peanut butter and jelly sandwich. This patent, U.S. Patent 6,004,596, was awarded to the J.M. Smucker Company on December 21, 1999. It is estimated that the peanut butter and jelly sandwich was first introduced in 1904. Obviously, Smuckers did not create the first peanut butter and jelly sandwich and therefore should not have been able to patent this product. In fact, even the process to create this type of sandwich had previously been awarded a patent in 1949 ("Sealed"). Obviously, this patent should not have been awarded to Smuckers, but they were able to claim on several technicalities that it was their own invention.
This sort of thing happens in the software world all the time. Patent 6,631,412 gave Microsoft ownership of an idea called “system and method for activity monitoring and reporting in a computer network.” What that overly complex sentence describes is something that is a standard in almost all instant messaging programs: if someone sends a message, an alert comes up telling you that you have received one (“Rush” 6). Patents like this prevent rising groups and companies from producing software implementing these broad and normally simple standards without paying royalties to companies that did not invent the ideas, but who own the patents anyway. This stifles innovation in software based on previous technologies. Obviously, a piece of student-produced software cannot offer software freely if they are forced to pay royalties for every copy of a piece of software they produce. Even patent holding companies have acknowledged the need for change in the patent system, “Microsoft General Counsel Brad Smith said certain changes to the patent system, including the creation of a federal court to hear patent cases, are necessary as ‘our patent system is being flooded with new patent application and an explosion of sometimes abusive litigation’” (Guth B.5). The times have changed and the patent system as it exists today does not work as efficiently or effectively as it needs to.
The problem of patents and copyrights is not likely to go away quickly and if anything, it will become an even more complicated issue before it goes away. Whether or not we can continue to innovate but still provide an incentive for budding inventors is a question that has no easy solution. Deeply rooted in the constitution is the idea that an individual has a right to his or her own wholly original product, but not so clear is whether one can own an idea behind a product. Patents have long been used for providing incentive to inventors, but many companies have abused the rather careless nature of the patent office and have obtained patents for things that they did not create. The patent office needs to be reformed, but not eliminated. What really needs to happen is that research being done by the patent office for pending patents needs to be done much more in depth and needs not only to look at previous patents, but when the idea entered the market as compared to when the patent was requested.
Works Cited (MLA format)
Buerkle, Tom. “Ideas vs. Income: When Tech Patents Collide Critics See Rise in Claims As Limiting Innovation.” International Herald Tribune 24 March 2001: 22. Proquest. Walt Whitman HS Library, Bethesda, MD. 21 April 2005
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Clark, Charles S. “Clashing Over Copyright.” CQ Researcher 8 November 1996: 1-31. CQ Researcher. Walt Whitman HS Library, Bethesda, MD. 19 April 2005
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Guth, Robert A. “Microsoft Adds Its Voice to Call For Overhauling Patent System.” The Wall Street Journal 11 March 2005: B.5. Proquest. Walt Whitman HS Library, Bethesda, MD. 26 April 2005
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Holloway, Andy. “Patently dangerous.” Canadian Business 28 February – 13 March 2005: 85. Proquest. Walt Whitman HS Library, Bethesda, MD. 2 May 2005
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Munoz, Sara S. “Patent No. 6,004,596: Peanut Butter and Jelly Sandwich.” The Wall Street Journal 5 April 2005: B.1. Proquest. Walt Whitman HS Library, Bethesda, MD. 26 April 2005
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“Patently absured: The EU should consider a fresh start in its patent quest; [London edition].” Financial Times 15 November 2002: 20. Proquest. Walt Whitman HS Library, Bethesda, MD. 25 April 2005
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“Rush to register intellectual rights is patently absurd.” South China Morning Post 14 October 2003: 6. Proquest. Walt Whitman HS Library, Bethesda, MD. 25 April 2005
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“Sealed crustless sandwich.” 20 April 2005. Online Encyclopedia. 22 May 2005.
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Smyth, Jamie. “ISA backs EU patent move.” Irish Times 21 April 2005: 21. Proquest. Walt Whitman HS Library, Bethesda, MD. 21 April 2005 .
Posted by Kickmyassman at May 25, 2005 05:02 PM