The patent might “protect” him from competition from you or me, but not from IBM—not from the very megacorporations which the scenario says are the threat to him. You know in advance that there’s got to be a flaw in this reasoning when people who are lobbyists for megacorporations recommend a policy supposedly because it’s going to protect their small competitors from them. If it really were going to do that, they wouldn’t be in favor of it. But this explains why [software patents] won’t do it.
Even IBM can’t always do this, because there are companies that we refer to as patent trolls or patent parasites, and their only business is using patents to squeeze money out of people who really make something.
Patent lawyers tell us that it’s really wonderful to have patents in your field, but they don’t have patents in their field. There are no patents on how to send or write a threatening letter, no patents on how to file a lawsuit, and no patents on how to persuade a judge or jury, so even IBM can’t make the patent trolls cross-license. But IBM figures, “Our competition will have to pay them too; this is just part of the cost of doing business, and we can live with it.” IBM and the other megacorporations figure that the general dominion over all activity that they get from their patents is good for them, and paying off the trolls they can live with. So that’s why they want software patents.
There are also certain software developers who find it particularly difficult to get a patent license, and those are the developers of free software. The reason is that the usual patent license has conditions we can’t possibly fulfill, because usual patent licenses demand a payment per copy. But when software gives users the freedom to distribute and make more copies, we have no way to count the copies that exist.
If someone offered me a patent license for a payment of one-millionth of a dollar per copy, the total amount of money I’d have to pay maybe is in my pocket now. Maybe it’s $50, but I don’t know if it’s $50, or $49, or what, because there’s no way I can count the copies that people have made.
A patent holder doesn’t have to demand a payment per copy; a patent holder could offer you a license for a single lump sum, but those lump sums tend to be big, like US$100,000.
And the reason that we’ve been able to develop so much freedom-respecting software is [that] we can develop software without money, but we can’t pay a lot of money without money. If we’re forced to pay for the privilege of writing software for the public, we won’t be able to do it very much.
That’s the possibility of getting a license for the patent. The other possibility is to invalidate the patent. If the country considers software patents to be basically valid, and allowed, the only question is whether that particular patent meets the criteria. It’s only useful to go to court if you’ve got an argument to make that might prevail.
What would that argument be? You have to find evidence that, years ago, before the patent was applied for, people knew about the same idea. And you’d have to find things today that demonstrate that they knew about it publicly at that time. So the dice were cast years ago, and if they came up favorably for you, and if you can prove that fact today, then you have an argument to use to try to invalidate the patent. And it might work.
It might cost you a lot of money to go through this case, and as a result, a probably invalid patent is a very frightening weapon to be threatened with if you don’t have a lot of money. There are people who can’t afford to defend their rights—lots of them. The ones who can afford it are the exception.
These are the three things that you might be able to do about each patent that prohibits something in your program. The thing is, whether each one is possible depends on different details of the circumstances, so some of the time, none of them is possible; and when that happens, your project is dead.
But lawyers in most countries tell us, “Don’t try to find the patents in advance,” and the reason is that the penalty for infringement is bigger if you knew about the patent. So what they tell you is “Keep your eyes shut. Don’t try to find out about the patents, just go blindly taking your design decisions, and hope.”
And of course, with each single design decision, you probably don’t step on a patent. Probably nothing happens to you. But there are so many steps you have to take to get across the minefield, it’s very unlikely you will get through safely. And of course, the patent holders don’t all show up at the same time, so you don’t know how many there are going to be.
The patent holder of the natural order recalculation patent was demanding 5 percent of the gross sales of every spreadsheet. You could imagine paying for a few such licenses, but what happens when patent holder number 20 comes along, and wants you to pay out the last remaining 5 percent? And then what happens when patent holder number 21 comes along?
People in business say that this scenario is amusing but absurd, because your business would fail long before you got there. They told me that two or three such licenses would make your business fail. So you’d never get to 20. They show up one by one, so you never know how many more there are going to be.
Software patents are a mess. They’re a mess for software developers, but in addition they’re a restriction on every computer user because software patents restrict what you can do on your computer.
This is very different from patents, for instance, on automobile engines. These only restrict companies that make cars; they don’t restrict you and me. But software patents do restrict you and me, and everybody who uses computers. So we can’t think of them in purely economic terms; we can’t judge this issue purely in economic terms. There’s something more important at stake.
But even in economic terms, the system is self-defeating, because its purpose is supposed to be to promote progress. Supposedly by creating this artificial incentive for people to publish ideas, it’s going to help the field progress. But all it does is the exact opposite, because the big job in software is not coming up with ideas, it’s implementing thousands of ideas together in one program. And software patents obstruct that, so they’re economically self-defeating.
And there’s even economic research showing that this is so—showing how in a field with a lot of incremental innovation, a patent system can actually reduce investment in R & D. And of course, it also obstructs development in other ways. So even if we ignore the injustice of software patents, even if we were to look at it in the narrow economic terms that are usually proposed, it’s still harmful.
People sometimes respond by saying that “People in other fields have been living with patents for decades, and they’ve gotten used to it, so why should you be an exception?”
Now, that question has an absurd assumption. It’s like saying, “Other people get cancer, why shouldn’t you?” I think every time someone doesn’t get cancer, that’s good, regardless of what happened to the others. That question is absurd because of its presupposition that somehow we all have a duty to suffer the harm done by patents.
But there is a sensible question buried inside it, and that sensible question is “What differences are there between various fields that might affect what is good or bad patent policy in those fields?”
There is an important basic difference between fields in regard to how many patents are likely to prohibit or cover parts of any one product.