Why not?
(
http://lpf.ai.mit.edu/Links/prep.ai.mit.edu/issues.article)
Systems at odds
The traditional rationale for patents is that protection of inventions will spur innovation and aid in the dissemination of information about
technical advances. By prohibiting others from copying an invention,patents allow inventors to recoup their investment in development
while at the same time revealing the workings of the new invention to the public.
But there's evidence that the patent system is backfiring in the computer industry; indeed, the system itself seems unsuited to the
nature of software development. Today's computer programs are so complex that they contain literally thousands of algorithms and
techniques, each considered patentable by the Patent Office's standards. Is it reasonable to expect a software company to license
each of those patents, or even to bring such a legally risky product into the marketplace? To make things even more complicated, the Patent
Office has also granted patents on combinations of algorithms and techniques that produce a particular feature. For example, Apple was
sued because its Hypercard program allegedly violates patent number 4,736,308, which covers a specific technique that, in simplified
terms, entails scrolling through a database displaying selected parts of each line of text. Separately, the scrolling and display functions
are ubiquitous fixtures of computer programming, but combining them without a license from the holder of patent 4,736,308 is now
apparently illegal.
Another problem with patenting software is the amount of time it takes to do so. The two to five years required to file for and obtain
a patent are acceptable if a company is patenting, say, the formula for Valium, which hasn't changed in more than 20 years. But in the
software industry, companies that don't continually bring out new versions of their programs go out of business. Success for them
depends on spotting needs and developing solutions as quickly as possible.
Unfortunately, conducting a patent search is a slow, deliberative process that, when harnessed to software development, could stop
innovation in its tracks. And because patent applications are confidential, there is simply no way for computer programmers to
ensure that what they write will not violate some patent that is yet to be issued. Thus XyQuest "reinvented" its automatic spelling-error
correction system and brought the product to market between the time that Productivity Software had filed for its application and been
awarded the patent...."
*******Ja, recimo nisam mogao da objavim clanak u "Mobility & Vehicle Mechanics" dok nisam podneo pat. prijavu, urednik je to zahtevao od mene.
Medjutim nekima su se desavale duge stvari, evo primera:*****
"...Such examples are becoming increasingly common. In another case, the journal IEEE Computer in June 1984 published a highly efficient
algorithm for performing data compression; unbeknownst to the journal's editors or readers, the authors of the article had simultaneously
applied for a patent on their invention. In the following year, numerous programs were written and widely distributed for performing the
so-called "LZW data compression." The compression system was even adopted as a national standard and proposed as an international one.
Then, in 1985, the Patent Office awarded patent number 4,558,302 to one of the authors of the article.Now Unisys, the holder of the
patent, is demanding royalties for the use of the algorithm. Although programs incorporating the algorithm are still in the public domain,
using these programs means risking a lawsuit..."
"...
Not only is the patent approval process slow, but the search for "prior art"--the criterion the Patent Office uses to determine whether
an invention already exists at the time of a patent application--is all but impossible to conduct in the realm of computer software. After
more than 25 years, the Patent Office has not developed a system for classifying patents on algorithms and techniques, and no such system
may be workable.
Just as mathematicians are sometimes unaware that essentially identical mental processes are being used in separate
areas of mathematics under different terminology, different parts of computer science frequently reinvent the same algorithm to serve
different purposes. It is unreasonable to expect that a patent examiner, pressed for time, would recognize all such duplication. For
example, IBM was issued a patent on the same data-compression algorithm that Unisys supposedly owns. The Patent Office was probably
not aware of granting two patents for the same algorithm because the descriptions in the patents themselves are quite different even though
the formulas are mathematically equivalent.
The search for prior art is complicated by the fact that the literature of computer science is unbelievably large. It contains not
only academic journals, but also users' manuals, published source code, and popular accounts in magazines for computer enthusiasts.
Whereas a team of chemists working at a major university might produce 20 or 30 pages of published material per year, a single
programmer might easily produce a hundred times that much. The situation becomes even more complex in the case of patented
combinations of algorithms and techniques. Programmers often publish new algorithms and techniques, but they almost never publish new ways
of combining old ones. Although individual algorithms and techniques have been combined in many different ways in the past, there's no good
way to establish that history...."
The inability to search the literature thoroughly for prior art is crucial, because unless an examiner can find prior art, he or she is
all but obligated to issue the patent. As a result, many patents have been granted--and successfully defended in court--that are not "original,"
even by the Patent Office's definition. It was simply the case that neither the patent examiner nor the defendants in the
lawsuit knew of the prior art's existence.
Some members of the commercial software community are now proposing the creation of a "Software Patent Institute" to identify software's
prior art that existed before 1980. But even if such an institute could catalogue every discovery made by every programmer in the United
States, it makes no sense to arbitrarily declare that only pre-1980 work is in the public domain.
Besides, what would be the purpose? To
allow the patenting of nature's mathematical laws?
Bad for business
Even when patents are known in advance software publishers have generally not licensed the algorithms or techniques; instead, they try to
rewrite their programs to avoid using the particular procedure that the patent describes. Sometimes this isn't possible, in which case
companies have often chosen to avoid implementing new features altogether. It seems clear from the evidence of the last few years that
software patents are actually preventing the adoption of new technology,rather than encouraging it.
And they don't seem to be encouraging innovation, either. Software patents pose a special danger to small companies, which often form the
vanguard of software development but can't afford the cost of patent searches or litigation. The programming of a new product can cost a
few hundred thousand dollars; the cost of a patent search for each technique and combination of techniques that the new program uses
could easily equal or even exceed that. And the cost of a single patent suit can be more than a million dollars.
"I'm not familiar with any type of ligation that is any more costly than patent litigation," says R. Duff Thompson, vice president and
general counsel of the WordPerfect Corporation. But Thompson's greatest fear is that software patents will wipe out young,
independent programmers, who until now have been the software industry's source of inspiration. Imagine what happens, says Thompson,
when "some 23-year-old kid who has a terrific idea in a piece of software is hammered by a demand letter from someone holding a
patent."
As for aiding the exchange of information, the expansion of software patents could mean instead the end of software developed at
universities and distributed without charge--software that has been a mainstay of computer users in universities, corporations, and
government for years. Many such programs--the X Window system, the EMACS text editor, the "compress" file-compression utility, and
others--appear to be in violation of existing patents. Patents could also mean an end to public-domain software, which has played an
important part in making computers affordable to public schools. There is obviously no way that an author who distributes a program for free
could arrange to pay for royalties if one of the hundreds of techniques that were combined to create the program happens to be patented.
Few programmers and entrepreneurs believe that patents are necessary for their profession.Instead, the impetus for patents on algorithms
and techniques comes from two outside sources: managers of large companies, who see patents as a means for triumphing over their competitors
without having to develop superior products, and patent attorneys, who see the potential for greatly expanding their business.
Today, most patenting by companies is done to have something to trade or as a defense against other patent-infringement suits.
Attorneys advise that patenting software may strengthen competitive position. Although this approach will work for large companies such as
Microsoft, Apple, and IBM, small and even mid-sized companies can't play in their league. A future startup will be forced to pay whatever
price the giants choose to impose.
Da li su softw. patenti omogucili razvoj softw. industrije...?
Copyright and trade secrecy
The best argument against the wisdom of software patents may be history itself. Lotus, Microsoft, WordPerfect, and Novell all became
world leaders in the software publishing industry on the strength of their products. None of these companies needed patents to secure
funding or maintain their market position. Indeed, all made their fortunes before the current explosion of software patents began.
Clearly patents are not necessary to ensure the development of computer programs. And for those who want more control over what they
see as their property, the computer industry has already adopted two other systems: copyright and trade secrecy.
Today, nearly all programs are copyrighted. Copyright prohibits the users of a software program from making copies of it (for example, to
give to their friends) without the permission of the individual or company that licenses the program. It prevents one company from
appropriating another company's work and selling it as its own. But the existence of a copyright doesn't prevent other programmers from
using algorithms or techniques contained in the program in their own work. A single software technique can be implemented in different ways
to do totally different jobs; copyright only prohibits appropriating the actual code that a particular programmer wrote
The U.S. patent system was created because the framers of the Constitution hoped that patents would discourage trade secrecy. When
techniques are kept secret for commercial advantage, they may never become available for others to use and may even be lost. But although
trade secrecy is a problem for software, as it is for other fields, it is not a problem that patents help to correct.
Pomazu li patenti da se smanji "trade secrets"
The place where trade secrecy is used extensively in software is in the "source code" for programs. In computer programming, trade
secrets are kept by distributing programs in "machine code," the virtually indecipherable translation of programming languages that computers read.
It is extremely difficult for another programmer to glean from a machine-code program the original steps written by the program's author.
But software patents haven't done anything to limit this form of trade secrecy. By withholding the source code, companies keep secret not a
particular technique, but the way that they have combined dozens of techniques to produce a design for a complete system. Patenting the whole
design is impractical and ineffective.
Even companies that have software patents still distribute programs in machine code only. Thus, in no
area do software patents significantly reduce trade secrecy.