Stuart Cheshire on Software Patents

This is my reponse to the League for Programming Freedom's CALL for LETTERS opposing software patents.

The software industry has experienced dramatic growth in the last decade.

One crucial factor that made this happen was that the personal computer empowered individuals with opportunities for creativity on an unprecedented scale.

For every one commercial program sold by the software giants, there are hundreds of 'amateur' programs being produced. Unlike America's "Public Access Television" (as parodied in Wayne's World, for those who've never seen the real thing), a good number of those 'amateur' programs will be better than anything commercially available.

How is this possible?

An individual without capital or financing cannot challenge Ford or General Motors to become a dominant car manufacturer. Even in the computer industry, Apple's example shows how slow and difficult it was to challenge the giants, but in the realm of SOFTWARE, anything is possible.

An individual with a brain and a $500 PC is limited only by their imagination and the time they can spend in front of the keyboard. An individual can produce world class software with a simple computer and simple programming tools. The expensive equipment and expensive development environments used by big companies are not necessary for the talented individual to produce phenominal results.

There are no manufacturing costs -- the programmer "manufactures" the components the program is constructed from by typing them into the computer. There are no supply problems and no prices to negotiate. When the program is finished, mass production costs a few cents for each floppy disk, or almost nothing if the program is distributed electronically through the shareware channels.

This freedom of the individual is vanishing. My freedom is vanishing. My programs infringe hundreds of patents. Is that becuase I stole other people's ideas? No. It is simply because I happened to have the same ideas. The same ideas that thousands of programmers have, starting with fourteen year-old school children programming computer games as a hobby (which is how I started). Ideas like this one: "If I add some amount to a number, and then subtract the same amount, then I get the number I started with." How did that manage to get a patent? The same way as all of the others -- it was worded in convoluted legal language to obscure the true, simple, unimpressive meaning.

I am not opposed to protection of intellectual property, but I am opposed to the current intellectual land rush, with lawyers busily staking claim to every idea they find that doesn't already have someone's name on it.

I support the application of copyright law to computer software -- I want the right to produce works which others may not simply copy verbatim and sell for profit.

In contrast, I consider that only a few -- a very few -- of the current software patents contain non-obvious ideas that are worthy of protecting.

The reason I say it is a very few is because most of the good ideas were discovered by the great names of computer science, decades ago. These important principles are not patented and licensed to companies. They are printed in books and taught in university computer science classes. The reason they are taught in classes is because they are not obvious. They are ideas which are difficult enough that an average programmer would probably not just think of them on their own by chance, so it is important that they are taught.

If in my program, I need to accomplish some task, I can usually work out how to do it, either from my own creativity, or from techniques I was taught in university. If however it proved to be beyond my ability, then I might seek outside assistance. In that case, I would say that it is right that I should pay the people who did the research which answered my problem. Without them I would not have been able to accomplish my task. This is fair. What is not fair is that my own ideas, derived by my own effort, in good faith, should turn out to to cost me money because someone else got a patent on them first. I did not steal anything, nor did their efforts in any way benefit me, yet the law says that I now owe them money. As a student I cannot afford the thousands and millions of dollars large companies demand, so my software -- my own work -- is taken from my hands and effectively destroyed, never to be seen by the public I wrote it for.

Under what possible interpretation is this a good outcome? There is only one that I know of. The giant software corporations are obviously in competition with their competitors. Individual authors are competitors to the software corporations, so making it impossible for them to operate is clearly in the interests of the software giants, who trade piles of patents between each other like bargaining counters.

Why is current patent law inappropriate for protection of ideas in the realm of computer software?

1. The year-to-year and month-to-month pace of developments that characterise the computer industry is incompatible with the 17 year lifespan of a patent. The very reason for the rapid pace of computer development is because this year's innovative idea is next year's standard feature. Windowing systems were novel five years ago, now you would not consider buying a computer without one. That pace of development is also true of a thousand little details below the surface, not visible to a casual observer. Now imagine putting every one of those developments on hold for seventeen years. Be sure that the rest of the world (where mathematical algorithms cannot be patented) will not halt their pace of development to wait for the US.

2. The style of work in the computer industry is unlike most other industries. As stated previously, computers allow individuals quite unprecedented creative scope, and even in the large corporations, 90% of the productive work is done by 10% of the programmers. The basic premise of granting a patent is that it must not be obvious to a person having "an ordinary level of skill in the industry", but a person having "an ordinary level of skill" in the computer industry is useless dead weight. I hope I am a computer programmer of above ordinary skill, and I certainly hope that everything I do would not be called "obvious", but every time I do anything which is "not obvious" then there's a good chance that someone else already holds a patent on it. Even if software patents were restricted to only allow non-obvious ones, I'll still be breaching them by the dozen in every program I write.

If US law makes it impossible for me to write my own software, then I shall not stop writing software, I shall leave the US and go to a country where my freedom to think my own creative, original thoughts has not been infringed.

The final question concerns application of design patents to computer screen elements. I should hope this can be dismissed without question. The examples of "what if the steering wheel were patented and every car had a different steering device to every other car?" and "What if every make of typewriter and computer had a different keyboard layout?" are so old and well worn that it is tedious to have to repeat them.

I think Richard Stallman summed it up very eloquently:

"When even one lawsuit over one patent typically costs a million dollars, and there are over ten thousand patents, dealing with patents one by one is like fighting malaria by crushing mosquitoes. The only way to solve the problem even partly is to change the law."

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