Sun 07 November 1999
Will open source software development be smothered by the patents avalanche or help to end it?
As Developer News correspondent Constance Petersen discussed in her article last week, 5 Nov. was Burn All GIFs Day. The protest was organized by a group of open-source developers and Webmasters opposed to the way Unisys has exercised the patent it holds on the LZW compression algorithm used in GIF files. The group proposes getting rid of all GIF files and substituting files in open graphic file formats such as PNG.
Creating Burn All GIFs Day is just one of the actions taken by just one of the groups who think that the patent system, as it applies to software, is being abused.
Another event brought attention to patents last week. As CNET reported, McDonnell Douglas received a patent for “windowing,” one of the most widely used (and intuitively obvious) Y2K problem-fixing techniques. The company has handed the patent over to Bruce Dickens, the technique’s inventor. Dickens’s attorney will reportedly contact Fortune 500 companies whose programmers have employed the patented technique to request payment and negotiate licensing terms.
Aren’t patent registration and enforcement just business as usual? Doesn’t the owner of a patent have the right to exercise it at will? Yes, of course. But the issues related to this news are not about the patent system per se. They revolve around the questionable validity of specific patents and their effect on software development in general — and especially, perhaps, the development of open source software.
The patent purpose
According to the text of most patent legislation, the main purpose of the patent system is not to protect inherent, abstract rights, but to enhance the common good by promoting the advancement of the arts and sciences. The system works like this: The government grants inventors legal monopolies over specific inventions and helps enforce the monopolies. In return, inventors agree to publish the details of their inventions and relinquish control over the inventions after a specified period of time.
Inventors benefit because the government-enforced monopoly gives them a better chance of recouping the expenses they incurred while developing their inventions. Society benefits because the common pool of useful knowledge is constantly augmented, and because everyone has free access to inventions after patents expire. Patents are a good idea, especially if you consider the consequences of the alternative — inventors trying to keep their inventions as secret as possible.
Not all patents are good deals for society, and the law foresees that. To be awarded a patent, an invention must be novel; the inventor must have been the first to invent that particular thing or method. It must also be non-obvious, meaning the invention can’t be a clear extension of something that is already known. Granting patents for non-novel inventions (prior art) would allow the imposition of royalties on methods and practices that have been in wide use, even for a long time. Patents for obvious stuff — things that anyone with the right background could have invented — are a bad idea and are therefore not granted.
So what’s all the fuss? The problem according to analysts, is that patents are being granted in increasingly large numbers for obvious and non-novel inventions, which defeats the whole purpose of the patent system. The problem is exacerbated because, as intellectual property attorney Steven Young explained in a recent Slashdot feature, there is no reasonable way to protect against patent liability. Becoming informed about the millions of patents, even just the subset that is relevant to your business, is not at all easy. Patents related to very specific areas of knowledge number in the tens of thousands. Some conservative estimates predict that 100,000 new software patents will be granted this year in the United States alone.
Not a target, but a cure
The League for Programming Freedom site at MIT offers a wealth of information about the patents problem and how it affects software development. The LPF predictably opposes software patents altogether, but the information on its site about the use and abuse of patents is interesting even if you don’t share their views.
To protect themselves against the patent avalanche, large companies seem to be filing for patents on everything imaginable. The strategy is to use patents as legal weapons against the dubious patents of others, but this practice is only serving to make the problem worse. Patent portfolios are being created mainly as a means of defense, but some developers have begun to worry about what could happen to the open source movement if companies decide to try to enforce their patents — which exist for Save As commands, multicolored option lists, and other code elements — against software projects like Linux.
Is that likely? I don’t think so. Some of the companies that hold large patent portfolios (most notably IBM) have already positioned themselves strongly in support of open source software, and they’re likely to defend open-source projects. Because of the open, collaborative nature of open-source efforts and the peer-recognition culture behind them, many open-source projects maintain detailed logs of who did what and when, and where further information about the techniques and algorithms used can be found. Those logs may be some of the best documented proof of previous art that can be used in court to challenge questionable patent claims. Open-source software would not become the target of the patent craze, but a good part of the cure.
Curbing the craze
The windowing technique patented by McDonnell Douglas interprets years expressed in two digits as belonging to century 2000 if the value is less than a specific, context-dependent threshold. For example, “15” is interpreted as “2015” instead of “1915,” while “90” is interpreted as “1990.” Windowing is a popular fix for Y2K problems because it is simple to understand and often easier to implement than other kinds of fixes.
Is the patent on windowing valid? That will be for the courts to decide. The U.S. lacks administrative procedures to challenge a patent after it has been granted, so the issue must be resolved in court.
Meanwhile, companies that have used the windowing technique are legally bound to comply with the conditions set forth by the patent holder. Abandoning the software or implementing a different fix so close to the dreaded Y2K date is out of the question. Neither the lack of knowledge about a filed patent nor the intention to challenge it is a legal basis for infringement. Analysts contacted by CNET predict that larger companies will just pay the fees and write them off as part of their Y2K compliance expenses, but smaller companies may want to fight the patent in court.
Even if the patent on windowing is valid, pursuing its enforcement so close to a global death-march deadline seems like placing the sword at the throat of someone who’s already against the wall. It has the sour taste of extortion about it. It’s far from clear if and how society can benefit from patents like this.
There’s a chance that the Fortune 500 giants will join with the smaller companies to try to set legal precedent against dubious patents. Maybe Y2K will mark in more than one way the beginning of the end of the patent craze.