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Thesis #95

In the spirit of Martin Luther, this is the beginning of my Ninety-Five Theses on why software patents are evil. I can only dream that these theses will be a catalyst or impact change.

In the spirit of David Letterman, I’m counting backwards. It’ll take me 95 iterations to figure out how to articulate what my number one reason is 🙂

Patents are a form of a temporary monopoly granted by the government to encourage research and innovation. One rationale for encouragement is that R&D can be extremely expensive, and without protections in place, expensive R&D won’t happen.

Software flunks this rationale. What other R&D can happen in a coffee shop for the price of one laptop?


What Is a Patent?

From uspto.gov, with my comments interspersed.

What Is a Patent?

A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. Under certain circumstances, patent term extensions or adjustments may be available.

The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.

The right to exclude makes sense when an invention is 99% perspiration. If I’ve spent massive amounts of time and/or money discovering the cure from the common cold, I should have the right to profit from my discovery by blocking you from mimicking my formula. However in our current system this exclusionary privilege has been twisted by patent trolls to extract license fees via the threat of lawsuits for patents they obtained by acquisition, not invention.

20 years also makes sense when an invention has the potential for a long life. But what software isn’t obsolete way before 20 years is up?

There are three types of patents:

1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;

2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and

3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

Clearly software isn’t a plant patent, and most software can’t possibly be considered a design patent. That leaves utility patents.  Chapter 10 of Title 35, United States Code says the term “process” means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material. Miriam Webster dates the origin of software to 1958, which is long after these laws were written. Which leaves us with lots of weasel words.

Patent Laws

The Constitution of the United States gives Congress the power to enact laws relating to patents, in Article I, section 8, which reads “Congress shall have power . . . 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.” Under this power Congress has from time to time enacted various laws relating to patents. The first patent law was enacted in 1790. The patent laws underwent a general revision which was enacted July 19, 1952, and which came into effect January 1, 1953. It is codified in Title 35, United States Code. Additionally, on November 29, 1999, Congress enacted the American Inventors Protection Act of 1999 (AIPA), which further revised the patent laws. See Public Law 106-113, 113 Stat. 1501 (1999).

The patent law specifies the subject matter for which a patent may be obtained and the conditions for patentability. The law establishes the United States Patent and Trademark Office to administer the law relating to the granting of patents and contains various other provisions relating to patents.

Novelty And Non-Obviousness, Conditions For Obtaining A Patent

In order for an invention to be patentable it must be new as defined in the patent law, which provides that an invention cannot be patented if: “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent,” or “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States . . .”

It has to be new, no prior art. 

If the invention has been described in a printed publication anywhere in the world, or if it was known or used by others in this country before the date that the applicant made his/her invention, a patent cannot be obtained. If the invention has been described in a printed publication anywhere, or has been in public use or on sale in this country more than one year before the date on which an application for patent is filed in this country, a patent cannot be obtained. In this connection it is immaterial when the invention was made, or whether the printed publication or public use was by the inventor himself/herself or by someone else. If the inventor describes the invention in a printed publication or uses the invention publicly, or places it on sale, he/she must apply for a patent before one year has gone by, otherwise any right to a patent will be lost. The inventor must file on the date of public use or disclosure, however, in order to preserve patent rights in many foreign countries.

 It can’t be publicly disclosed or made for sale prior to the application date plus on year.

Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable.

Non-obviousness is where the fun begins 😉

Business of Software

What an ISV (Independent Software Vendor) sells isn’t the software itself, but the right to use. The rights, and restrictions, of both the vendor and the user are spelled out in the software license agreement. By definition that agreement will strike some balance between granting users sufficient privileges to use the software, while preserving the vendor’s rights of ownership.

Given how it’s up to the software license agreement to protect an ISV’s crown jewels, you’d think every book written about the business of software would at least mention the subject. You’d be wrong. As business people we’ve failed to educate ourselves and abandoned this in the purview of lawyers, thereby granting the lawyers incredible control over our businesses.

I don’t mean to pick on my colleagues, but here’s a quick review of the literature.

No, or virtually no mention of software license agreements:

  • Eric Sink on the Business of Software by Eric Sink
  • Software That Sells : A Practical Guide to Developing and Marketing Your Software Project by Edward Hasted
  • Guide to Software Export: A Handbook for International Software Sales by Roger A. Philips
  • How To Succeed In The Enterprise Software Market by Craig Le Clair
  • Micro-ISV: From Vision to Reality by Bob Walsh
  • The Business of Software: What Every Manager, Programmer, and Entrepreneur Must Know to Thrive and Survive in Good Times and Bad by Michael A. Cusumano
  • Joel on Software by Joel Spolsky

A brief discussion:

  • Copyright Your Software by Stephen Fishman

The only detailed discussion I’ve found (currently on backorder from Amazon):

  • Web & Software Development: A Legal Guide by Stephen Fishman