NEWS FLASH: //Check our latest course offering on Patent-Business-Strategy over at Udemy here: http://www.udemy.com/patent-business-strategy/ with a 50 per cent launch discount // A collection of articles on patents, software and technology.

1. Select Patent Issues
Hasit Seth
Hasit Seth
hasit@coofluence.com  www.coofluence.com
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2. These are some of my writing on patents. They were first published on an email
discussion list “commons-law”. While they mostly deal with software patents issues,
the focus is always on the core patent principles. Your questions and comments are
welcome at hasit@coofluence.com .
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3. One
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4. Why do we have a patent system?
Patent law has three goals, viz., 1. Encourage disclosure and dissemination of
scientific and technical knowledge, and hence create a public domain; 2. Create a
central public repository of knowledge by providing a secure and long-lasting public
domain repository; 3. Provide incentives to the inventors in return for his/her agreeing
to disclose his/her invention to the public. This is the "patent is a contract/barter
between government and inventor" view of patent system.
Another, view is that patents are a "currency for inventions" in the sense that
if an inventor has a patent then he/she can specifically license rights to those patents
to others. Without such a concrete "currency" form of invention, it would require a
new type of contract each time the rights to the invention need to be transferred. In
many instances, this contract will have to be negotiated afresh each time a license is to
be granted.
Under US patent law, a patent is considered to be a "right to exclude" and not
a right to exclusively make something. Patent is a valuable proprietary right in
practical commerce and industry, whatever are its theoretical foundations. I do not
know if considering patent as a property really causes "confusion". To me question is
whether patent law (or some part of it) is hampering or promoting quantity and quality
of inventions and innovations?
The 1970 Act defines "invention" in the sense of "patentable inventions". It does
not mean that other inventions not covered by the Act are non-inventions. It just
means by inference that inventions not covered by the Act are "non-patentable
inventions".
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5. Two
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6. Patents grapple with new technology
I have great respect for Richard Stallman (RMS). Not just as a great
programmer (GNU and Emacs) but also as a visionary who envisioned that free
software is a practical idea.
There is enough buzz about anti-software patents that it is hard to answer so
many concerns. Why are patents a problem only in two areas of software and
pharma-biotech? Patents over mechanical, chemical, electronic, electrical
technologies seem to have no problem for those who oppose software and pharma
biotech patents. In theory a mechanic with screws, nut-bolts, welding machine, sheet
metal and a forging press should be able to create airplanes, cars and what not. Such
a mechanic would be infringing thousands of patents. Take a chemist, who has a
periodic table and bottles of all the elements listed there, could theoretically make
every possible patented medicine. But this has never been a concern because the
innovation in these areas is complex. Common sense tells us that making an
argument for such a hypothetical super-mechanic or chemist is naive, since inventing
is hardly so obvious as to hamper other inventor’s innovations.
The computer you are using has probably hundreds of patented IC circuits,
and the Intel/AMD/VIA processor inside it has hundreds of patents protecting it.
Some circuit designers may be hampered by these patented processors in their goal to
design a new processor. One solution is that they can license the patents. But other
solution is what the patent system really wants you to do - invent around it, design
around it, make your own invention. This is the key, but being "obstructionist" in
appearance, patents really encourage more innovation by forcing inventors to find
new ways towards the same goal.
In a sense this is economic waste, why reinvent the wheel? But wheel since
the ancient time has not remained the same, think that Goodyear was not allowed to
make wooden wheels due to a hypothetical patent and that led him to develop the
rubber process that ultimately led to pneumatic rubber tires - that would be innovation
though the imaginary wheel patent was "obstructionist". Story goes that in 19th
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7. century one US patent officer recommended that the patent office be closed since all
that was to be invented was already done and nothing more remained. But innovation
and invention is a never ending source. We humans are masters of finding new ways
of solving problems. Plus, some alternative that was developed due to a patent hurdle
may be useful in some other field, who knows? Since innovation is incremental, more
patent disclosures (now within 18 months a patent is filed it gets published for others
to learn) provide scientists and engineers even greater base to invent more.
Now software programmers do feel like this: “does that mean that I have to
read a thousand patents before I write a 1000 line program?” Compare software
innovation with the microprocessor and wheel situations, a lot of answers are there -
though not all.
Pharma-biotech patents concerns morality and social issues (arguments of
type: should a dying person be not able to get medicine just because it is expensive
and patented). It is a question of economics of invention and social policy about
health; hence, they are out of context when considering software patents. But software
patents are something else. Here is my take on this topic. First, because of internet
and cheap computers, any one can create even a complex operating system. Well Bill
Gates did it (MS-DOS) and so did Linus Torvalds (Linux). The entry barrier to
creating a complex software invention is very low, and hence there is a valid
argument for freedom to write software without worrying about patents. If I alone
can do it why should I not be able to do it?
Second, the whole argument got momentum because of a stupid job done by
U.S. Patent Office in examining the inventions and granting a lot of initial patents
without looking at prior art. The fault lies in examining software patents before
issuance, rather than anything innately wrong with software patents. Otherwise, all
sorts of mechanical and chemical patents too would be troublesome to inventors in
those fields and to the public at large.
Third, it is also a question of time. Software sprang up in last 20-30 years at a
pace unmatched by any other technology. This meant that initially the patent offices
had very little prior patents to rely on in rejecting the early patent applications and
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8. offices didn't have trained examiners who knew a lot of software technical literature
to reject those patent applications. Over time, a large pool of prior patents will
become available and those in patent practice are already finding it terribly hard to get
very broad patents issued. More the prior art, narrower the patents, and more is the
inventive freedom to design around it.
Fourth, lexicon is a problem with software. It is hard to express software
elements in terms of language. Today, every programmer can recognize terms like
parsers, browsers, protocol, kernel etc., and one cannot even think of getting a patent
on these. But software develops at rapid pace, and words do not exist most of the
time to describe a lot of software. This ends up in a patent office as a broadly
described software patent which claims the result but not the process by which it is
achieved. This is just a matter of time, just like mechanical and chemical fields,
terminology will become standardized, and we will see a lot of less broad software
patents.
Fifth, the level of disclosure detail required by patent office. Until early 20th
century, US Patent office required the inventors to submit actual models of their
invention. They discontinued this practice since mechanical inventions got narrower
and narrower and for logistics reasons. For biotech inventions, sequence listing are
required to be deposited. I wish they required this for software too, so that it is not
claimed at the level of an idea but an actual method backed by program listing or
pseudo-code to back it up.
Sixth, physical nature of software is unlike a chemical or a machine. It is
expressed in writing, which as RMS mentions should be protected by copyright.
Though it is writing, it is a set of instructions that makes a computer behave in
particular way. Hence, it is also functional, and copyright does not extend to
functional stuff, but expressions.
Seventh, so much of open source software is being developed without
software patent posing as problems. SCO v. IBM battle is hardly about specific
software patents, but more about copyright/code theft. Java virtual machine
architecture from Sun exists and so does virtual machines from Microsoft's .NET
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9. virtual machines. Though empirical, this does point out that the problem is not an
epidemic that has paralyzed software development around the world.
Eight, tons of stuff can be said about the way the patents are enforced. Getting
a patent is just the beginning. To enforce it is a bigger problem, perhaps than
defending it. Keeping aside the high American legal fee issues, patents with broad to
narrow scopes keep getting invalidated in courts all the time. An issued patent when
litigated gets attacked by a million pieces of prior art (which can include even an
obscure PhD thesis dated before the invention in a small library of a tiny college in
some little country barely visible on a map, provided it is catalogued and accessible)
and not just those that were available to the examiner. In short, enforcing a patent is a
Herculean task, and it is no wonder that many broad patent enforcement suits died
before being harmful in anyway to innovation. There is a lot more to be said about
this. I will do that at some later time.
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10. Three
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11. Baseless Arguments
This piece is about software being patentable in India. Indian stance on
software patents is heavily influenced by European position about software patents.
Partly this is due to Indian law’s umbilical cord relationship to English law, and partly
because opposing something coming out of “capitalist evil” America is a must for a
large class of academia, government and businesses all of whom follow left oriented
thought process.
One, Europe and European politicians are not opposing software patents out of
some noble cause, it is pure politics. American dominance in software is well-known.
Japanese dominate the hardware-electronics business and Americans the software,
and Europeans dominate none of this. The companies Philips, Infineon, Siemens,
Nokia, Ericsson, SAP dominate bits and pieces of markets but do not own the
software market even in a single vertical market. Hence, they are motivated to not
enact software patents to deny America the competitive space. To assume that there
is something gravely dangerous about software patents because Europeans are
opposing just means closing eyes and ears to the political side of software-hardware
global market. Americans are championing software patents since their IP licensing
revenues are greater even more than their other chief export: Aircrafts.
Second, even Europe is comfortable with software-hardware combinations
that have some "technical effect". To assume that there is some iron-curtain between
software and hardware means ignoring technical realities. Software today exists in
many forms - including hardware! I am talking about FPGAs (Field Programmable
Gate Arrays) that are configurable chips that can take on role of many hardware
elements when programmed in a certain way. Embedded software is hardware and
software fused together. If these are patentable, then it makes little sense to oppose
software patents purely because of the form of software ("pure software" and not
hardware-software combination).
Third, from a technologist’s point of view, it is unfathomable as to why
patents should be allowed or are even good for hardware but not software? Both are
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12. technical inventions after all. If I write a great piece of software, as an inventor, I feel
I should be able to maximize my returns on my invention. Some charitable guys will
donate their work, but a lot of inventors want money. Even companies who provide
salaries to inventors or invest in heavy R&D costs deserve returns for their
investments. Also, research is a little gambling type of work, sometimes years to
draining money does not bring up a product that can earn money. Thousands of
software companies sunk money in so-called Artificial Intelligence research but came
up with almost no tangible benefits.
Fourth, I just do not understand a fundamental issue. Markets or Bazaar has
existed since early human times. Property, Contract-Barter and Market are notions
that are well-entrenched in all cultures. Why is then software and patentable software
such a terrible problem, when all it does is what is done for other inventions,
chemical, mechanical and so on? Some aspects of human knowledge have existed
purely in the public domain and have grown - examples: Mathematics, Geology and
Theoretical Physics. Some other aspects are in hybrid (public-private) domain -
chemistry, applied physics (electronics), and they too have developed. To claim that
certain branches of human knowledge can ONLY grow in public domain seems to
against established history. Software, as most applied sciences, has grown in public-
private domain and will continue to do so. To assume that patenting will kill all
public domain side of software is not right. Most of the applied sciences have not had
their public domain side killed. It is rather an issue of maturity and time which
determines in which domain an applied science will grow.
Fifth, free software is doing great stuff, but it is hardly inventing new stuff.
This is a sweeping generalization; I know that, but I am making a very general
observation. Right from BSD and GNU cloning UNIX, Open Office closing MS-
Office, KDE/GNOME extending X-windows to operate like windows, are hardly
inventions, but just reapplications. Yes, there are thousands of internal pieces of these
software that may be inventions, but we are talking about fundamental breakthroughs.
Some problems in software, such as speech recognition, handwriting recognition,
artificial intelligence, have been researched both in public and private domain but no
great breakthroughs have come forward in either domain. Just because software for
these applications is or is not in public domain has not stopped research in this field.
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13. Sixith, my concern is to develop a set of policies that will maximize
innovation - either in public domain, private domain or both. If exclusive public
domain model of innovation gives the best return then let there be no software
patents. But the fact is that BOTH public and private software development have
gives us huge jumps (UNIX was proprietary work; and Internet/TCP/IP was public
work). If the private model needs software patents to maximize its returns then they
are fine, but I do not think that granting patents is going to kill the public domain side
of programming. Programming is to an extent writing, expression, engineering all
mixed together, it is far more fundamentally human than most people think. Hence,
public domain side of programming will always remain active. Software patents will
lead to more public alternatives, and more public alternatives will mean even more
better private company software products. Just as Linux is forcing Microsoft to create
more and more secure Windows platform. This is a chain reaction, and it raising
software innovation all the time.
Seventh, software companies do not need software patents as their main tool
of business like pharmaceutical companies do. One fundamental aspect of software
today is its "BLACKBOXED" nature. Most software is complied and does not exist
in source form. Microsoft does not need patents to do its day to day business of
selling Windows software since it is complied and exists in a binary form, almost
impossible to reverse engineer. Hence, do not think that software patents are bread
and butter for software companies. Further, the web-software like Google which
exists as a service is even more opaque than complied software to need software
patents to protect its internal algorithms.
It would be disastrous for India to follow the lead of Europe, for the sake of
following something, in software patents. Nations have certain competencies, and its
policies must help enhance and maintain those competencies. India’s software
industry is India’s competency, if our patent policies are not going to take Indian
software industry to the next level, what use is this Indian patent system for?
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14. Four
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15. Can’t Have the Cake? Eat the Bread
There is a misconception that software since most of it exists in written form
needs only copyright protection like written or other expressive works do. But
software isn't literature. Looks can be deceiving applies here! It is a set of functional
instructions that customizes a computer to behave in a certain way. Now this set of
instructions is an embodiment or application of new techniques (can be processing
oriented - e.g, distributive data processing; mathematical - e.g., superior encryption or
data compression methods; computational, graphical, controlling - some embedded
machine control; and what not since software-hardware is programmable and so
versatile).
Today software is expressed in words because that is the most convenient way to do
it today. But with times paradigms for programming will change, may be it will
become manipulation of diagrams or even direct manipulation of FPGA like circuits
or quantum computing with different interfaces and not just zillion lines of code. Will
copyright be sufficient to protect those things? But more than that copyright protects
just expression of ideas, i.e., and not invention. I am sure no one will argue that
copyrightable expression and invention are pretty much the same things - just read a
patent or talk to an inventor and not an anti-patent activist!
The copyright-is-sufficient-for-software hangover is from the days when
people didn't understand how much software can do. Most people viewed computers
as nothing more than sophisticated calculators and calculators calculate, so
instructions to do that are nothing more than mathematics, therefore mental process,
and therefore ideas of nature etc were the logical steps in old thinking. But as
sciences develop they acquire their own identity. For example, 100 years ago
electronics as a separate branch of science or "electronic inventions" would be funny
because most of it was physics about gaseous vaccum tubes. With invention of
transistor, ICs, this changed. We do not now view electronic inventions as just mere
expressions of principles of physics.
Most arguments against software patents are divorced from history of invention and
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16. market place for inventions. It is always instructive to view software patents in
context of history of innovation and patenting in chemical, mechanical and electrical-
electronics fields.
It is not about following America. It just happens that most software (systems or
tools variety - not application) originates and is used in America historically. After all
they developed this field to a large extent. Hence, the debate arose in America. Also,
note that it was not the US government which approved software patents, but it was
judiciary in the State Street Bank case which opened this field for patenting.
The David vs. Goliath, small guy vs. big guys, argument has appealed to us
humans since time immemorial. It may seem that patents are tools of big
corporations, especially American multinationals. Well they are, because so much of
industrial research is conducted in the private sector in America. And some
breathtaking inventions have occurred (Edison's inventions, AT&T Bell Labs, Xerox
PARC, etc) in private sector and based on the economy of private sector patents are
good to protect investments. Software presents a unique opportunity to create
inventions and innovative spirit in developing countries, because it does not need
material resources of the west in other inventive spheres say like electronics or
chemistry. Software is a great leveler. India's $16bn software exports are a testimony
to that fact. Instead of worrying about theoretical foundations, activist
scaremongering, it is time to create some great software in India and earn good
money. Whether this goes to small developer’s pockets or some small or large
companies is irrelevant, more important is to start the chain reaction of innovation,
marketing, improvement in software in India and other developing countries.
Patents are going to have a minor role as future of software and computing
matures. Hence, this debate will also decimate itself in time.
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17. Five
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18. O Indian, Compete, Nay Whine
The amendment to patent act providing for "software related patent" is indeed badly
drafted if the intent was only to grant patents for embedded software because
legislative intention should be clear in policy matters.
That said it is amazing to contrast constitutional approaches to innovation. American
constitution explicitly provides for patent and copyright protection to promote
invention. And an argument below seeks to show that the Art. 39 of the Indian
Constitution seeks to promote socialism's goals and somehow that is anti-patent. Imn
Art. 51A(h) there is a directive policy that states that state shall endeavor to increase
scientific temper.
I am yet to see a cohesive argument with economics that shows that cumulatively
patents in the broad fields of mechanical, chemical, electrical-electronics invention
have somehow created havoc in the Indian society. Take agriculture for example,
pesticides can be patented, seed manufacturing technology can be patented,
mechanical inventions such as tractors, harvesters can be patented but there has been
no large scale havoc caused by such patents. And we can all agree that agriculture is
the most basic, pervasive economic activity in India affecting everyone.
Why then will software patents create a catastrophe? There is an argument in the
excerpt below that software industry is living in peaceful Alice-in-wonderland and
patents will "disturb the peace prevailing in the software field, and may raise
contentious disputes between various hardware manufacturers, software developers
and entities". So what, big deal? Software is business like any other business, and if
other businesses have patent regimes why should software business be any different?
Does any one remember the Indian nationalized bank employees’ union agitation (in
around '80s) against "computerization" that will destroy the labor rights? Nationalized
bank union extorted money as compensation for allowing computers in banks!!! Then
there was a stir in railways when computerized reservation was introduced. The scare
tactic below is just one of those types. Where has computerization destroyed labor in
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19. banks? or in railway reservation. Sure computers mean less number of clerks are
needed to transfer entries from receipts to general ledgers in banks, but look at the
customer service you are getting in banks and railway reservations due to
computerization. These are but just few examples of anti-technology and anti-
innovation attitudes.
I mention this because somehow there is a pervasive belief that innovation and
invention in any form will destroy the existing social and economic structures in
India. At the risk of making a sweeping generalization, if only the hyperbole can
drive home the point: There are more anti-innovation activists than innovators in
India. (I am not speaking of European innovation - its opposition to software patents,
because that has more to do with Europe's business competitiveness with US in
software) Patents are a one policy tool to promote invention and innovation. There
are many other policy tools that control, destroy and promote invention, e.g.,
subsidies, licensing, finance, taxation, moral issues, labor and so on. Patents are not
the atom bombs they are made out to be of monopolistic control.
While patents sound in theory to have huge monopolistic power (and they do in some
fields like pharmaceuticals, no denying that) in most fields they have only marginal
market control power. There are two reasons for the patent coverage: One, language
restricts capturing patent rights. All said and done, patent is a piece of written
document. It is just not possible to "own" a technology field through a single patent
or patents for a substantial length of time. The more you claim in a patent claim,
more chances you get a stupid patent with tons of prior art reading on it. Thirdly, any
lawyer will tell you that a written document creating or transferring legal
rights/obligations will have no guaranteed interpretation by a court. Patents are no
different. Statistics are available in US that show huge number of patents being
invalidated in courts - day in and day out.
Two, technology has always competing alternatives. For far too many fields same
result can be achieved by multiple and different techniques. For example, if LZW
algorithm and GIF file formats were patented by Unisys, the free software community
came up with its own format PNG, and not to mention there are zillion graphic file
formats - TIFF, JPEG, PCX, DWG and so on - from standard groups, private
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20. companies, and so on. Same is the story with encryption. Most patenting is not
simple as shown in WIPO's comic book about patents! But in some fields patents can
be counterproductive, for example, if TCP/IP was patented then it would have taken
some time for someone to come up with a competing alternative with the wide
acceptance level of TCP/IP. Medicines are another example, developing a new
competing molecule takes billions of dollars and years of clinical and chemical
research. I would be first to say that innovation and invention can be very disruptive.
Inventions (truly big ones) like most big social, economic and political ideas have
power to change the human life in a drastic way. This is because science, technology
and invention does not follow social rules or morality in evolving. Atomic science just
developed without any connection with dangerous social effects as history showed.
Industrial revolution in Europe wrecked havoc on small artisans in India. We can
choose to remain in isolation, or we can join in innovation race. And first price to pay
is shedding of anti-innovation and anti invention bias. We have the capability and fire
to be as innovative as Japanese, Taiwanese, American, European and other inventors.
Do we want to become history or do we want to create history on our own terms?
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21. Six
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22. Can’t Just Ignore the History
I am not a big fan of Microsoft but as a computer enthusiast I find that
characterization of Gates and Microsoft in early PC history can’t be just wished away.
Microsoft's DOS OS was the prime reason for personal computing being affordable
today. CP/M the only major "PC" OS around at the time was proprietary. IBM's PC
DOS (developed by MS) was expensive (or impossible at one stage) for PC Clone
makers to license through IBM. Apple being the paragon of proprietary stuff had no
interest (and still doesn't have) in licensing its OSs. MS-DOS is what ran the PC-
Clone market. The technical merits of MS-DOS are a different topic, and GNU
certainly didn't make personal computing happen. If one understands the difficulty
that Linux is facing today in supporting thousands of different types of hardware
devices from multiple vendors, there lies the historical value of MS-DOS and
Microsoft. Linux enthusiasts are doing an admirable job of supporting drivers for a
lot of hardware but still a lot needs to be done (e.g., Wireless cards with proprietary
firmware are a pain to setup). DOS ran on every kind of PC clone, and Windows still
supports the widest variety of garden hardware. Yes, MS monopolized the Windows
application market, but this deserves a closer look. But before that on DOS platform,
MS just provided the OS - the Word-processing package was Wordstar, the
Spreadsheet was Lotus 1-2-3 and The Database was dBase III+ - all non-MS
applications. All these non-MS application makers were quite slow in releasing their
Windows versions. Most were so wedded to the text based MS-DOS that they just
could not make the transition fast enough (e.g, dBase III+ or Wordstar). Nobody
wanted to develop applications for Windows till Windows 3.1 became popular. MS
filled in this space (of course with head start from knowing Windows codebase) with
acceptable applications such as Word and Excel. Developing these Apps is hardly a
trivial task where one can say that MS just hacked together a few pieces of off-shelf
software. Just look at the effort required in OpenOffice to understand the nature of
the task. Other OS Vendors lost faith in the PC market - principal being IBM with a
much superior offering of OS/2. MS continued developing both OS and App market,
with entry barriers getting higher and higher for other players. Sure they were
monopolistic, but just look at Apple or IBM in similar circumstances and they are no
different.
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23. Software is not easy to develop, especially complex and large applications. For
example, GNU's Hurd kernel is years in making without any end in sight. It is just a
damn tough job. Linux enthusiasts will rave about Vi and Emacs, GNU CC and
Make as all that you need to develop applications. That may be so for some good
cases. But MS's contribution, from a purely technical and developer productivity
viewpoint, in Visual Basic is just immense. Nothing comes close in ease of
developing a GUI app - whether free or proprietary application. I know there is an
ongoing Gambas project to close Visual Basic, but then like most open source
projects it is a cloning effort. And Hypercard for Apple unfortunately didn’t become a
dominant player.
If we accuse of MS of rehashing and repackaging existing technology, open source
software is no different with their best efforts being admirable clones (some better,
some worse) of existing proprietary OS’ or applications. While MS is a terrible
company in some its tactics, and a classic monopolist at many times, its historical role
in bringing affordable computing to masses cannot be just wished away.
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