some Statements, various sources.
Reback 2002: My Introduction To Patent Realities
Reback on IBM's predatory patent practises
Gary Reback, a famous american software lawyer, narrates from his memories
My own introduction to the realities of the patent system came in the 1980s, when my client, Sun Microsystems--then a small company--was accused by IBM of patent infringement. Threatening a massive lawsuit, IBM demanded a meeting to present its claims. Fourteen IBM lawyers and their assistants, all clad in the requisite dark blue suits, crowded into the largest conference room Sun had.
The chief blue suit orchestrated the presentation of the seven patents IBM claimed were infringed, the most prominent of which was IBM's notorious "fat lines" patent: To turn a thin line on a computer screen into a broad line, you go up and down an equal distance from the ends of the thin line and then connect the four points. You probably learned this technique for turning a line into a rectangle in seventh-grade geometry, and, doubtless, you believe it was devised by Euclid or some such 3,000-year-old thinker. Not according to the examiners of the USPTO, who awarded IBM a patent on the process.
After IBM's presentation, our turn came. As the Big Blue crew looked on (without a flicker of emotion), my colleagues--all of whom had both engineering and law degrees--took to the whiteboard with markers, methodically illustrating, dissecting, and demolishing IBM's claims. We used phrases like: "You must be kidding," and "You ought to be ashamed." But the IBM team showed no emotion, save outright indifference. Confidently, we proclaimed our conclusion: Only one of the seven IBM patents would be deemed valid by a court, and no rational court would find that Sun's technology infringed even that one.
An awkward silence ensued. The blue suits did not even confer among themselves. They just sat there, stonelike. Finally, the chief suit responded. "OK," he said, "maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?" After a modest bit of negotiation, Sun cut IBM a check, and the blue suits went to the next company on their hit list.
In corporate America, this type of shakedown is repeated weekly. The patent as stimulant to invention has long since given way to the patent as blunt instrument for establishing an innovation stranglehold.
Richard Stallman 1994
Richard Stallman's Testimony to the USPTO Hearings 1994
Richard Stallman, founder of the GNU project and speaker of the League for Programming Freedom explains in easy-to-understand terms to a hearing at the US Patent Office in 1994 why the extension of the patent system to software / algorithms is harmful to all software development, no matter whether free or proprietary, and why copyright provides a fairly adequate framework for both. This speech is very clear in explaining some of the basic issues that often cause confusion.
Software is like other fields of engineering in many ways. But there is a fundamental difference: computer programs are built out of ideal mathematical objects. A program always does exactly what it says. You can build a castle in the air supported by a line of zero thickness, and it will stay up.
Physical machinery isn't so predictable, because physical objects are quirky. If a program says to count the numbers from one to a thousand, it will do exactly that. If you build the counter out of machinery, a belt might slip and count the number 58 twice, or a truck might go by outside and you'll skip 572. These problems make designing reliable physical machinery very hard.
When we programmers put a while statement inside an if statement, we don't have to worry about whether the while statement will run such a long time that it will burn out the if statement, or that it will rub against the if statement and wear it out. We don't have to worry that it will vibrate at the wrong speed and the if statement will resonate and crack. We don't have to worry about physical replacement of the broken if statement. We don't have to worry about whether the if statement can deliver enough current to the while statement without a voltage drop. There are many problems of hardware design that we don't have to worry about.
The result is that software is far easier to design, per component, than hardware. This is why designers today use software rather than hardware wherever they can. This is also why teams of a few people often develop computer programs of tremendous complexity.
People naively say to me, "If your program is innovative, then won't you get the patent?" This question assumes that one product goes with one patent.
In some fields, such as pharmaceuticals, patents often work that way. Software is at the opposite extreme: a typical patent covers many dissimilar programs and even an innovative program is likely to infringe many patents.
That's because a substantial program must combine a large number of different techniques, and implement many features. Even if a few are new inventions, that still leaves plenty that are not. Each technique or feature less than two decades old is likely to be patented already by someone else. Whether it is actually patented is a matter of luck.
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I've explained how patents impede progress. Do they also encourage it?
Patents may encourage a few people to look for new ideas to patent. This isn't a big help because we had plenty of innovation without patents. (Look at the journals and advertisements of 1980 and you'll see.) New ideas are not the limiting factor for progress in our field. The hard job in software is developing large systems.
People developing systems have new ideas from time to time. Naturally they use these ideas. Before patents, they published the ideas too, for kudos. As long as we have a lot of software development, we will have a steady flow of new published ideas.
The patent system impedes development. It makes us ask, for each design decision, "Will we get sued?" And the answer is a matter of luck. This leads to more expensive development and less of it.
With less development, programmers will have fewer ideas along the way. Patents can actually reduce the number of patentable ideas that are published.
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A decade ago, the field of software functioned without patents. Without patents, it produced innovations such as windows, virtual reality, spreadsheets, and networks. And because of the absence of patents, programmers could develop software using these innovations.
We did not ask for the change that was imposed on us. There is no doubt that software patents tie us in knots. If there's no clear and vital public need to tie us up in bureaucracy, untie us and let us get back to work!
Robert Barr (CISCO) 2002
Statement of Robert Barr, IPR department of CISCO
Complains that the patenting consumes ressources of CISCO and innovative companies in software-related fields without promoting innovation, and in fact penalises innovators, asks for restriction of patentability to fields where it can be shown that patents benefit society.
My observation is that patents have not been a positive force in stimulating innovation at Cisco. Competition has been the motivator; bringing new products to market in a timely manner is critical. Everything we have done to create new products would have been done even if we could not obtain patents on the innovations and inventions contained in these products. I know this because no one has ever asked me "can we patent this?" before deciding whether to invest time and resources into product development.
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The time and money we spend on patent filings, prosecution, and maintenance, litigation and licensing could be better spent on product development and research leading to more innovation. But we are filing hundreds of patents each year for reasons unrelated to promoting or protecting innovation.
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Moreover, stockpiling patents does not really solve the problem of unintentional patent infringement through independent development. If we are accused of infringement by a patent holder who does not make and sell products, or who sells in much smaller volume than we do, our patents do not have sufficient value to the other party to deter a lawsuit or reduce the amount of money demanded by the other company. Thus, rather than rewarding innovation, the patent system penalizes innovative companies who successfully bring new products to the marketplace and it subsidizes or rewards those who fail to do so.
Douglas Brotz (Adobe) 1994
Adobe gainst Software Patents
At the USPTO hearings of 1994, Adobe's representative said:
Let me make my position on the patentability of software clear. I believe that software per se should not be allowed patent protection. I take this position as the creator of software and as the beneficiary of the rewards that innovative software can bring in the marketplace. I do not take this position because I or my company are eager to steal the ideas of others in our industry. Adobe has built its business by creating new markets with new software. We take this position because it is the best policy for maintaining a healthy software industry, where innovation can prosper.
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For example, when we at Adobe founded a company on the concept of software to revolutionize the world of printing, we believed that there was no possibility of patenting our work. That belief did not stop us from creating that software, nor did it deter the savvy venture capitalists who helped us with the early investment. We have done very well despite our having no patents on our original work.
On the other hand, the emergence in recent years of patents on software has hurt Adobe and the industry. A "patent litigation tax" is one impediment to our financial health that our industry can ill-afford. Resources that could have been used to further innovation have been diverted to the patent problem. Engineers and scientists such as myself who could have been creating new software instead are working on analyzing patents, applying for patents and preparing defenses. Revenues are being sunk into legal costs instead of into research and development. It is clear to me that the Constitutional mandate to promote progress in the useful arts is not served by the issuance of patents on software.
Oracle 1994
Oracle against Software Patents
From Oracle's statement submitted to the hearings on software patentability at the US Patent Office in 1994
Oracle Corporation opposes the patentability of software. The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments.
Patent law provides to inventors an exclusive right to new technology in return for publication of the technology. This is not appropriate for industries such as software development in which innovations occur rapidly, can be made without a substantial capital investment, and tend to be creative combinations of previously-known techniques.
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Unfortunately, as a defensive strategy, Oracle has been forced to protect itself by selectively applying for patents which will present the best opportunities for cross-licensing between Oracle and other companies who may allege patent infringement.
OK, so even software industry leaders are against the idea, it is usually a few (IBM, MICROSOFT) that are for this idea. The problem is that comparing software to hardware is erronious and inaccurate. For one, its already protected under copywrite laws, if you choose it to be. Second, patents apply to derivative works, and ALL software made in the past 20 years are derivative works. From the Cursor idea to icons, if they were patented, we wouldn't have a usable GUI at all, if ever. What point is there for anyone to innovate if they have to first check and see if there own user interface isn't already patented? What would have happened if the HTML was patented in the beginning, plus any idea along with it, it would have killed the internet, and we would either be talking over a huge world-wide BBS right now, or not talking at all.
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