Kevin Panko
Computer Ethics
An Analysis of Software Patents
The United States patent system is not working and needs to be reformed. It was intended to promote innovation by encouraging people to create original, unexpected things, in other words, inventions. Somebody with a new invention can apply for a patent on it, and then receive a 17 year monopoly over that invention. With computer software, the system does not work. It many (but not all) cases, it only encourages the unethical behavior of stifling competition through legal threats.
Consider the case of Amazon.com's "1-Click" patent. Amazon.com sells books over the Internet. Like many online shopping sites, their site incorporates the idea of a shopping cart, which keeps track of items that the customer wants to buy. At "check-out," the customer then specifies her credit card number and shipping address. This is nothing special. It is widely used on the Internet and published in many books which cover HTML. Amazon.com has patented the process of using a web cookie to keep track of customers, and a database of customer information to make it unnecessary for customers to enter their information on return visits to their site, in other words, just one click on a web page places the order.(1)1 This is patented now, so Amazon.com has the right to sue anybody who does the same thing. Barnes and Noble had a similar feature on their web site, and Amazon.com was able to sue them and force them to add an extra step to their web page. That is ridiculous, and totally counter to the reason that patents exist.
Patents have been around for as long as our country has existed. Congress is empowered by the Constitution "to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."(2)2 The purpose of a patent is to encourage science and invention. It would protect an inventor from losing control of his ideas after he publishes them. If a competitor could copy an invention after it is on the market, then there is less reason to put it on the market, or even to bother creating new inventions at all. Patents encourage science and invention, but what is happening now, with software patents, seems to be quite the opposite thing. Patents for software are easy to get. Once a company has some, it can sue to protect its "ideas." This leads to less innovation in the field because companies now must be concerned with the possibility that something they produce with honest labor will be contested as a patent violation. Because it is so easy to get patents, the odds are good that somebody already has one on your idea. It is true that "bad" patents can be invalidated in court, but to challenge a patent can cost over $1 million. Creating software is actually more difficult because patents have become an obstacle rather than an incentive.
Why are patents so easy to get? It was not always that way. Originally, the secretary of State, the secretary of War and the attorney general would consider each invention. Only three patents were awarded the first year. Times have changed. Now the patent office produces 10,000 patents every three weeks. Why? First of all, in 1991, the patent office was cut off from general tax revenues and required to subsist entirely on fees for its operating budget. This means that the more patents awarded, the more fees are collected. So patent examiners are eager to award patents; it means more money in their paycheck. Secondly, the system is set up to make it hard to turn a patent application down.
To turn down a patent, an examiner must show that prior art exists. "People send in some really strange stuff for patents, and I have no choice but to issue it," says one examiner. "I can't say, 'Gee, that's obvious to me.'" Evidence of obviousness "has to be out there and public and in the same detail."
The patent system was designed for an age when inventions were physical objects. Concepts such as usefulness and novelty were easy to judge. With software, things become more difficult to decide. "Prior art" is not published in academic journals, but it is in the minds of the people who write software, and things change so fast, that it can be hard for them to know what has been thought of before.
We have seen some reasons why so many software patents are issued, and the harm that it causes. Another example of a unethical patent is also held by Amazon. It has another patent(3)3 on the process of allowing other web sites market their books for a commission (their Affiliate program), which will certainly lead to the same problems as the 1-Click patent. Another infamous patent(4)4 is held by Unisys, on the LZW compression algorithm. LZW is used in an obsolete graphic format called GIF, which many web sites use in order to be compatible with old web browsers. Unisys is now demanding that web sites pay them $5000 or more to use these now-obsolete GIF graphics if the software originally used to create the GIFs was not covered by an appropriate Unisys license.(5)5 This is a terrible abuse of the patent system. GIF images have been around for many years, and it was okay to use them, until recently, when Unisys changed their mind. Patents should not be used only to make money; their primary purpose is to encourage new ideas, products, and processes.
Those are the problems with patents. What might be done about this? Ironically, Jeff Bezos of Amazon has some good ideas.(6)6 First, shorten the lifetime of a software patent to around 3 to 5 years. Other kinds of patents last much longer, 17 years, but it is justified, if it takes a long time to develop the thing which is patented. For example, if you have to build factories, or do expensive testing (e.g. drugs). With software, 3 to 5 years (or less) is enough to allow the creator of the software to profit from it before the patent expires. Second, there should be a short (one month) public comment period before the patent is given. That way, prior art is much more likely to be pointed out. That would have prevented patents like the 1-Click from being granted, because somebody would have come up with prior art. Tim O'Reilly of Orielly books said it was a "bad" patent, which never should have been granted(7)7, but the patent examiner probably did not have enough knowledge of software to show why it was not original. It is also possible that she was thinking of her paycheck. The patent office should be funded by government money again, so that patent examiners can be paid the same amount for any number of patents issued.
It is unethical to allow innovation to be hindered because it hurts everybody. So making the proposed changes would be ethical. Software patent law needs to start doing its job again -- encouraging innovation.
1. http://www.delphion.com/details?pn=US05960411__
2. http://www.nytimes.com/library/magazine/home/20000312mag-patents.html
3. http://www.delphion.com/details?pn=US06029141__
4. http://www.delphion.com/details?pn=US04558302__
5. http://burnallgifs.org/
6. http://www.amazon.com/patents/
7. http://www.oreilly.com/ask_tim/amazon_patent.html