Note: the French version of this document contains more links.
A patent aims at protecting innovation by giving an inventor a temporary monopoly allowing him to sell his invention. In the software area, patents are useless, since the development costs and times are much lower than for industrial processes; the protection given by the copyright is sufficient, and even better, as it is free. In practice, the software patents (in the USA and in Japan, where they have a legal existence) precisely have the opposite effect. Many trivial or non-technical patents based on prior art (see below) are used to threaten companies. These companies could contest the validity of these patents in a court, but such lawsuits take a long time (several months or years) and cost a lot of money; in general, they prefer to pay a fee, without any legal basis. Individuals and, in particular, developers of free software could be threatened too.
The software patents deal with general ideas consisting of small parts of software (and not with complete software). Thus it is difficult, or even impossible, to write software without being concerned by numbers of patents based on elementary ideas (the Patented European webshop is a good example). And it is practically impossible to check (see the IBM vs Sun Microsystems lawsuit in the 1980s, for instance).
Who benefit by the software patents? Mainly large corporations, that have a lot of money and can apply for many patents on one hand and support the lawsuit costs on the other hand. This is in accord with what Bill Gates wrote in 1991. Even an owner of a really original patent could not benefit by it without huge lawsuit fees, because his software would probably infringe some trivial patents. Small companies that own patents (even trivial ones) but have no products may also benefit by threatening other companies, as they have nothing to lose.
In January 2002, the European Commission presented a proposal to harmonize the situation in Europe, allowing software patents.
On 24 September 2003, the European Parliament added amendments to this proposal, thus rejecting software patents; the text was approved for by a large majority.
But on 18 May 2004, the Council of Ministers approved a text allowing full software patentability, by a slim majority, thus ignoring the vote by the Parliament. Note the way in which the Irish Presidency pressed Denmark for her votes, to obtain this majority. At that time, Spain, Italy, Austria and Belgium did not support that position.
In July 2004, the Dutch parliament passed a motion requesting the Dutch government to stop supporting the Council text.
18 November 2004:
Poland
cannot support the text which was agreed upon by the EU
Council
. Therefore the political agreement of 18 May
can no longer be formally adopted as the common position of the
EU Council.
December 2004:
Despite the initial opposition of several countries and the current absence
of majority in favor of the text of 18 May, the adoption of the directive
was added as an A-item
(that is, without debate or vote) of
a Council meeting on the environment! And this A-item was added only 2 days
before the meeting, though the Council's rules of procedure demand a 14-day
delay.
The Polish Second Minister of Science and Information Technology, Wlodzimierz Marcinski, came personally to Brussels and eventually managed to obtain a delay on the adoption of the directive, which can later be discussed and modified. Once again, many thanks to Poland!
January 2005:
On 19 January, it was announced that the adoption of the directive was to
be added as an A-item
in a fishery meeting on the 24th, but
Poland still disagreed. Thanks again!
In the meantime, the European Parliament's Legal Affairs Committee (JURI) is preparing a restart of the procedure, that should be voted on 2 February (see JURI Decision about Restart of Procedure on Software Patents).
2 February 2005: European Parliament JURI Committee votes for restart with massive majority.
28 February 2005: The Commission has turned down the European Parliament's request for a restart of the software patents directive. The directive will once more appear as an A-item on 7 March.
7 March 2005:
The Council Presidency
adopted the directive of 18 May 2004 as an A-item
,
despite Denmark's request (followed by other countries) for a
B-item
(with discussions). The text will then return to the
European Parliament for a second reading, but the rejection of the text or
amendments will need an absolute majority (in particular, an absence counts
as a vote in favor of the Council's directive).
6 July 2005: The European Parliament rejects the directive.
January 2006: The European Commission is again trying to get the Community Patent adopted, including software patents.
According to a report by PriceWaterhouseCoopers, The Netherlands, 2004 (Rethinking the European ICT Agenda, paragraph 342 page 50):
There are particular threats to the European ICT industry such as the current discussion on the patent on software. The mild regime of IP protection in the past has led to a very innovative and competitive software industry with low entry barriers. A software patent, which serves to protect inventions of a non-technical nature, could kill the high innovation rate. However, opinions on software patent in its current proposed form vary a lot. Many large companies operating on a global scale, including European ones, seem to be in favour of a software patenting regime. But most small enterprises are strongly opposed. Only very few European companies have prepared themselves for the consequences of a software patent regime. It raises the question how the introduction of the European software patent interacts with a European strategy based on widespread use of ICT's.
Miscellaneous links on software patents in Europe:
Patent absurdity by Richard Stallman (20 June 2005, on ZDNet). This article gives a good explanation on the difference with the copyright and reuses an analogy with literary works.
An activism update from Europe, by Tom Chance (June 2004).
Petition for a Software Patent Free Europe.
Software Patents in Europe: A Short Overview (with more details than above). Alternate version.
The list below is far from being exhaustive and I do not have the time to update it. But links to other sites are given on this page.
20 trivial patents in online commerce: the Patented European webshop.
Google sued for adding options to links. The complaint was filed the same day the patent has been granted!
[US Patent #7206839 (Method for adding a user selectable function to a hyperlink)]
IP Innovation sues Apple over violating obscure GUI patent (April 2007, on Engadget). Full article Apple sued over vague user interface patent on Ars Technica.
[US Patent #5072412 (User interface with multiple workspaces for sharing display system objects)]
Vertical Computer Systems is suing Microsoft for allegedly using without permission its patent for a method of generating web sites
as part of the .Net framework (April 2007, on InfoWorld).
[US Patent #6826744 (System and method for generating web sites in an arbitrary object framework)]
Microsoft copies BlueJ, admits it, then patents it. However, a few days after the revelation, Microsoft recall the patent application, saying that it was an error. Was it really?
About the JPEG patents:
August 2004. Forgent Networks and the JPEG patents (discussion on Slashdot).
April 2005. Forgent filed a suit against Microsoft too (article on ZDNet).
May 2006. Finally, the JPEG patent is rejected by the US PTO: Groklaw, Linux-Watch, LWN.
See also the patent issues, on Wikipedia.
Microsoft Granted 1-Click Pausing Patent (December 2005). Again, obvious and without anything technical.
[US Patent #6973669 (Pausing television programming in response to selection of hypertext link)]
Amazon pays $40 million to Soverain before the trial begins, to avoid useless lawsuit fees (August 2005, on ZDNet).
Microsoft's patent on converting datastructures (objects) into XML (May 2005, on ZDNet UK). Banal idea, without anything technical. Besides there would be prior art.
[US Patent #6898604 (XML serialization and deserialization)]
About Microsoft's IsNot patent application (February 2005, on The Register).
Microsoft's patent on latitude/longitude encoding (February 2005, discussion on Slashdot): trivial, very similar to well-known methods, and probably useless in its generality.
[US Patent #631611 (Compact text encoding of latitude/longitude coordinates)]
Kodak wins a lawsuit against Sun (October 2004, on ZDNet) concerning patents (bought by Kodak) on the concept of delegation. Sun agreed to pay $92 million to avoid a long lawsuit.
Hotspot operators face new patent fee demand for page redirection (October 2004, on Wi-Fi Networking News).
[US Patent #6226677 (Controlled communications over a global computer network)]
At PUBPAT's request, Patent Office rejects Microsoft's FAT patent [on the long filenames] (September 2004). See also the article on The Register.
[US Patent #5579517 (Common name space for long and short filenames)]
Xybernaut Corporation patents the collar computer (September 2004, discussion on Slashdot).
[US Patent #6798391 (Wearable computer system)]
More Microsoft patent nonsense emerges (September 2004, on The Inquirer).
[US Patents #6785865 (Discoverability and navigation of hyperlinks via tabs) and #6784354 (Generating a music snippet)]
Microsoft patents sudo, a feature that has existed for more than 20 years in Unix systems (August 2004, discussion on Slashdot).
[US Patent #6775781 (Administrative security systems and methods)]
Nintendo patents key console online gaming features, like player league tables and voice communications (August 2004, on The Register).
[US Patent #6769989 (Home video game system with hard disk drive and internet access capability)]
Microsoft patents the TODO list (June 2004, discussion on Slashdot).
[US Patent #6748582 (Task list window for use in an integrated development environment)]
Microsoft is granted a patent for long click / double click (June 2004, discussion on Slashdot).
[US Patent #6727830 (Time based hardware button for application launch)]
Network Associates' antispam patent (June 2004, discussion on Slashdot).
Eolas' patent on plug-ins and the trial against Microsoft (May 2004, on ZDNet).
E-Data sues Getty Images and Corbis for distributing digital content (for instance, images or music) over the Internet (May 2004, on ZDNet). In the past, E-Data sued Microsoft and others for music download services (January 2004, on ZDNet).
IBM's restroom patent (October 2002, on News.Com): a system based on the first-come, first-served rule. IBM eventually renounced this patent.
[US Patent #6329919 (System and method for providing reservations for restroom use)]
British Telecom's patent and the hyperlinks (August 2002, on The Register). After British Telecom had failed to charge ISPs a fee for hyperlinks, they sued one of them... and lost after one year and a half.
FFII.
League for Programming Freedom and its page on the software patents. This site includes a letter from Pr Donald Knuth to the US Patent Office.
Fighting Software Patents - Singly and Together, by Richard M. Stallman, 2004.
Patents and Linux, by Tim Bray (August 2004). A small quote: In software, assume that everything is already patented. You can't build anything, no matter how new it is, without infringing someone's patent.
Software's game of mutually assured damage, by Ross Gittins (July 2004, on the Sydney Morning Herald).
The Public Patent Foundation's Microsoft Patent Watch initiative. See also the article on Groklaw.
Technology industry hits out at patent trolls
(June 2004, on BBC News).
Patents Microsoft may infringe (May 2007, at LXer).
The Patent, Used as a Sword, by Charles Duhigg and Steve Lohr (October 2012, in the New York Times).
Why Silicon Valley likes Obama's patent troll offensive, by Vivek Wadhwa (June 2013, in The Washington Post).
You can also search for US patents on the Free Patents Online Database and on Google (Patent Search).
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