Concerning Your Career
Employment Tips for Open Systems Professionals
The Workplace Hazards of Software Patents
By Jim Johnson
Who does current patent law really protect in the realm of software?
The number of companies receiving patents and filing patent applications
for software has increased dramatically in the last couple of years. Although
more companies are now filing applications, a small handful have held almost
all software patents, with IBM and Hitachi topping the list. Patenting software
may seem to be more of a legal issue than a workplace issue, but this trend
increasingly impacts the everyday lives of staffers, managers and independent
Patents should not be confused with copyrights; there are critical differences
between the two concepts. Copyrights cover "works," a particular
literal expression of an idea, such as a song or book. Patents originally
were intended to cover "inventions" and to grant a 17-year monopoly
on the production and use of such "devices." The social justification
for this policy is to encourage progress in science and the "useful
arts"; it provides an incentive for inventors to make the precise nature
of their inventions public so they will eventually become available to all
humanity. It should be noted that--in practice--the U.S. Patent and Trademark
Office (PTO) and the courts have come to define invention as including
relatively abstract techniques, and now interpret devices
as encompassing the actual ideas underlying the devices.
Problems with Software Patents
At first, software patents might seem like a great idea. In 1994, mighty
Microsoft was forced to bow to tiny Stac Electronics when it was determined
that Microsoft's DoubleSpace product infringed upon the patented compression
techniques used in Stac's Stacker product. But, just as Microsoft could
be stung by a (presumably) accidental re-creation of a patented software
technique, so can any other software company or independent developer.
However, consider for a moment how many lines of code have been written
in the last few decades; then consider the fact that there is a dearth of
computer science graduates among the PTO's examiners. Obviously, there are
serious questions as to whether the PTO can reasonably determine if a specific
claim has already been invented or may be unreasonably broad.
More importantly, the patenting of software discourages the innate creative
process that is software development. For example, an essential element
in the current Internet revolution has been free software like the Unix-based
HTTPD Web server and the DOS/Windows-based Pegasus e-mail program, whose
distribution cuts costs for providers and allows users to explore the Net
for little initial cost. Ironically, this kind of software is precisely
the type of innovation that is already being stifled by software patents.
Many independent developers have laid the foundations of their careers on
freeware and shareware, and many managers of small firms have successfully
leveraged these marketing methods into effective competition against "the
big boys." The rapidly increasing number of software patents creates
a much greater opportunity for accidental infringement and the costly legal
proceedings and product derailments that often go along with it. By and
large, software patents empower the big guys and disadvantage the little
The case of Derek Noonburg is a good example of the hazards facing independent
developers. Noonburg is a graduate student in Electrical and Computer Engineering
at Carnegie-Mellon University in Pittsburgh, PA. For fun, he created an
X Window System-based application for reading PDF (a.k.a. Adobe Acrobat)
files and was giving it away for free on the Internet. Unfortunately, the
PDF standard includes LZW data compression, a technique for which Unisys
Corp. holds a patent. In December 1995, he says, Unisys told him there was
"no way" he could "legally distribute a free PDF viewer"
that uses LZW. Noonburg was forced to pull his product from the Net until
he could develop a workaround that doesn't use LZW.
Small companies are also vulnerable; from an economic standpoint, perhaps
even more so than independent freeware developers. Some unscrupulous attorneys
deliberately seek out overly broad patents and then demand "one-time
licensing fees" from companies offering related products. Large companies
may have the relative luxury of choosing to pay off or fight it out, but
smaller firms often can't afford to do either and are forced to take a severe
financial blow. (For a more thorough exploration of the history and legal
aspects of software patents, see High
Technology and the Law)
As important as it is to protect oneself against the dangers of accidental
patent infringement, it's not an easy task. The first and most important
thing is to raise awareness; staffers should make sure that their managers
and coworkers know of the danger, and managers should push their company
to develop fluency in patent concepts and follow developments in the field.
Both organizations and independent developers can do their part in keeping
the problem from getting worse by refraining from patenting their own products
(of course, they should not hesitate to copyright them, if they wish).
In the design stages of a product, a company could conduct its own patent
search to determine if any similar techniques already exist, but this is
costly, time-consuming and frequently unreliable. However, if one is facing
litigation or other threats from patent-holders or their agents, a "prior
art" search may turn up evidence that could challenge the validity
of the patent in question.
Of course, opinions about how to react vary with individuals and firms.
Some might choose to praise and patronize companies that have voiced opposition
to software patents, such as Adobe, Autodesk and Oracle. Conversely, they
may also choose to petition or not patronize companies that patent software
as a matter of policy; top software patent holders include AT&T, DEC,
Hitachi, IBM, Sharp, Toshiba and Xerox.
The real problem, of course, is PTO policy, which probably will require
a legislative remedy. Completely exempting software from patent coverage
is one option; other proposals include shortening the span of time that
software patents may apply and providing for mandatory licensing. It might
seem naive to ponder the prospect of getting any such legislation through
Congress, but the economy is one thing that politicians seem to react to.
While a handful of large corporations may be defending software patents,
a league of small and medium-size firms actively opposing them would be
a substantial political force.
The primary organizational resource in the protection from and opposition
to software patents is the League for Programming Freedom (LPF) in Cambridge,
MA; opposing software patents is a primary reason that the LPF was founded.
It acts as a focal point for lobbying, as well as a resource for individuals
and firms being directly threatened by patents. One of the best ways for
corporations and individuals to help out is to join LPF and propagate its
materials. For further information, send e-mail to firstname.lastname@example.org.
The LPF Web site is http://www.lpf.org/,
and its FTP site can found at prep.ai.mit.edu in the directory /pub/lpf.
Let's act now to protect our companies, our own careers and software innovation
Jim Johnson is a certified personnel consultant and the
principal of Options Unlimited, specializing in the placement of Unix professionals
in the Washington, DC, area. He can be reached at email@example.com.