A Brief Note on Software Patents
Nah Soo Hoe (May 2005)
There is a big controversy going on currently about the patentability
of software and the way patents offices (in countries which recognise
software patents) process software patent applications. Software
is patentable in some countries e.g. USA, Japan, Singapore. In
these countries software patents may be granted to functional aspects
of software which are considered to be innovative and
non-obvious. The expressive elements of code are not patentable,
instead, they are covered by copyright to which almost all the
countries in the world subscribe to. While many countries still
do not recognise software patents (Malaysia is one of them), they are
increasingly coming under pressure from those countries in the
developed world which recognise them, to change their postion.
Very often this is done through indirect means e.g. by way of
provisions in trade agreements and economic co-operations and it may
not be long (if not already) before this issue is brought up to be
considered by the relevant bodies/authorities in Malaysia. As
stake holders in this, members of local ICT bodies and associations
like the MNCC should be aware of the pros and cons of software patents
and understand the issues concerning this in their proper
perspective within the local context. Only then can their views
be properly represented by their organisations to the government over
this matter.
Case for Software Patents
The proponents of software patents say that as long as a country
recognises the patent system as a means to reward individual entities
for technical innovation and invention it should apply equally to the
functionalities found in software. With this, as with a physical
hardware invention or component, the person or company is appropriately
rewarded by the government and is granted a set of exclusive rights for
a limited amount of time. Only with this can the country
appropriately reward and in doing so encourages technical innovation
and inventions. In fact, locally, many people (including some
heads of
corporations and senior government officials) are equating the number
of patents filed and accepted to the innovativeness and creativity of a
company or country. So as far as software is concerned it
is the same and the software owner or developer needs patents to
protect his software innovations against competitors and others who may
want to steal his ideas and software functionalities. The patent
system if applied to software will offer protection
for the lone inventor or small-time developer against his ideas being
ursurped by larger developers and corporations. They also argue
that since the patents office allow only real inventions and
innovations to be patentable there should be no fear of abuse. So
when viewed in this manner, software patents are good for innovation,
especially for small software companies and developers since they can
come up with good ideas, patent them and then collect royalties
from some big multinational company when it uses these ideas in their
own software and/or products.
Case against Software Patents
The detractors of software patents say that it is almost impossible to
create software without building on the previous ideas and work of
others. For example, there is more to a word processor than the
functionalities of a spell checker or some font definitions. So
if, for example, the basic functionality of a spell checker is to be
patented, any one else who wants to develop text-based software
utilties may inadvertently infringe on this patent. So one has to
be aware of this even before a single line of code is written.
While by itself this may not seem like too big a hassle to check, in
practice, for any single piece of useful software, there can literally
be thousands or tens of thousands (or more!) of such ideas or
functionalities and it will be almost impossible to ensure that no
patents are violated. The small and independent developer will
face a huge challenge if he wants to avoid infringing a patent as he
will need to expand considerable amounts of time and financial
resources to perform the check. Software creation and innovation
will suffer. For example, the Internet and WWW will not be what
it is today if most of their technologies and functionalities were
patented and the early Internet software pioneers were not able to
build on each other's ideas and functionalities. The worse part is that
more likely than not, the poor owner of the software will only
know that he has violated some patent after his software becomes fairly
widely used and the patent holder starts to sue him. He will have
no choice but to either contest the lawsuit or pay up the royalties
demanded of him.
Some may argue that a small software company may benefit if it
possesses some important software patents and so it is able to collect
a large amount of royalties from the bigger companies which need to
incorporate these in their products. In reality if the small
company were to try to do that it will probably be counter sued by the
bigger companies for infringing on their patents instead. Thus a
strict software patents regime only benefits big corporations with a
huge arsenal of registered patents and legal resources. These
will have the ability to cross-licence patents with other corporations
or businesses and so they will not be sued for patent infringements by
other companies and patent holders.
At the national level, less developed software economies will suffer
as, collectively, their indegenious companies will probably possess
only a relatively small number of patents to benefit from
cross-licensing. The software development entry-level is raised
and the cost of software will rise due to patent royalty payments
leading to increased cost of doing business and providing services
across the board. (However, note that an individual/company may
benefit if it has a patent that it can claim from some widely-used
software.)
Another reason software patents do more harm than good is that the
entry level for software inventions or innovation is very low, unlike
physical inventions or pharmaceutical research. With the current
state of computer power and Internet access, almost anyone with a
personal computer can tinker with software creation and development and
in doing so come up with all sorts of ideas for functionalities in
software and file for patent protection. Now in theory, the
patents office is supposed to scrutinise patent applications and reject
non-innovative and obvious or trivial ideas. It is also supposed
to reject a patent if the idea or function is already in use in some
other software. However, in practice all over the world we find
that contrary to this, software patents are granted too easily.
The patents office is usually ill-equipped to search for software
functionalities already in use (“prior art”) when considering a patent
application. Patents are granted for broad, general and very
often trivial concepts, e.g., double-click for handheld devices,
progress bar on a computer screen, etc. (The reader is encouraged
to visit the website, http://webshop.ffii.org, which shows how easily
some 20 software patents infringement may be made in the creation of a
typical e-commerce site.)
We should also note that in the above arguments against software
patents there is no distinction about the type of software that will
suffer. It will affect all types of software, proprietary as well
as open source, commercial as well as non-commercial.
Conclusion
In my view, we should reject the patentability of software
altogether. With the recognition of patents in software, on the
whole everybody loses except possibly big corporations with huge
patents arsenal. A few individuals/organisations with some valid
innovative patents or opportunistic individuals and/or organisations
with submarine patents may also benefit but by and large the fledgling
software industry in this country will suffer irreparable damage and
software innovation will be retarded. An important direct
consequence of this is that the country's ambition to become a
technology producer will be hampered as today software is a key
component of any technology innovation or invention. The
intellectual property component of software is currently adequately
protected by the country's copyright laws. If need be, stricter
enforcement of these laws should be done.