Patents

Summary

This page describes some of the problems associated with using copyright
law and patent law for controlling software. Both systems are currently
inadequate, and modifications to the law of patents is suggested.

For the impatient, the conclusions are summarized below:

  • Free public release of a
    technology without a stated time limit less than the patent period implies a permanent
    intention to make it available.
  • Open Release is still possible by requiring a payment based on product costs
    which may be $0.
  • Patents require that users of the technology:
    • Agree with the patent holder on licencing terms
    • Or

    • Pay a 'statutory' fee per use, as decided at the time the patent was registered. Part of the
      approval process must be to determine that this fee is 'reasonable'.

  • In the case of Funding Bodies, patents last 5 years from the
    date the project has
    made a 100% profit on the original direct development costs (as approved at the time the patent
    is registered), or 10 years at maximum.
  • In the case of everybody else, the patent lasts 7 years from the date that the
    first Mass Market release is made, or 5 years from the first release of a product by the
    patent holder, or 10 years at maximum. Note that this provision provides some protection
    for Visionaries.

The problem with Copyright

Copyright comes from books. When people buy a book, they generally buy a book by a specific author. I
would not buy a book on software development by Ronald Reagan, unless is was advertised as
'Copied from Knuth'.

The point here is that the original author is recognized and important, and that unless you can say
this is almost exactly like Knuth's, people are not going to buy it. When we buy 'Lord of the Rings'
by Enid Blyton, we expect a rather different story. This is why copyright works.

Software is different. Most people don't care who authored their software, they just want to be told
it is 'Windows Compliant', or 'completely implements the LZW compression algorithm'.

This means that in a 'copyright' environment, software developers who wish to protect their ideas
and profit from them must keep them secret. They also have absolutely no protection against reverse
engineering, so once their product is released, they need to make a profit quickly.

Is there a way to fix Copyright?

As far as I can tell, there is no way to make a copyright system work on software. For copyright
to work, there must be an original work or works, and this implies a source language. To avoid
copyright restrictions, one simply needs to write the algorithm in another language. If the
copyright laws that handle translations of books can be extended to software, then one still faces
the problem of people rewriting the underlying algorithm - a process that will almost certainly
produce a very different implementation.

The problem with Patents

While patents seem like a good idea, they have a few problems:

  • Unscrupulous companies can patent an algorithm, then release it for general use. If and when
    they find it has saturated the market, they can start claiming licensing fees. There is probably
    a word for this kind of entrapment.

  • While patents encourage dissemination of knowledge, they also choke the benefits of that
    dissemination by providing a way for patent owners to prevent others developing products
    using their technology.

  • The patent period is ridiculously long in the software world.

Is there a way to fix patents?

The entrapment problem can be addressed by stating that free public release of a
technology without a stated time limit less than the patent period implies a permanent
intention to make it available.

This may sound draconian, but if the patent holder wants to make the software free for
distribution, all it requires is that they say 'We reserve the right to
charge for this in 7 years time', or 'We require the payment of $0.01 for each licence', or
if they want to make it usable in open source software, then 'We require the payment of
1% of the list price of each item sold or distributed' etc.

Either of the first two statements will ring alarm bells for many people, and make the potential
users clearly aware what they are getting into. In the case of GIF files, I believe there
was an alternate format mooted at the time - it may have been developed if it was clear that
GIFs were going to face restrictions.

The 'restriction of use' problem can be addressed by requiring that users of a technology
must either:

  • Agree with the patent holder on licencing terms
  • Or

  • Pay a 'statutory' fee per use, as decided at the time the patent was registered. Part of the
    approval process must be to determine that this fee is 'reasonable'.

The determination of a 'reasonable fee' may sound like a very grey area, and it is. But it is no
more grey than the determination of whether something is patentable, or whether something else
infringes a patent. Thankfully, the registering authority has a fairly strong hand in this: they
can simply refuse to patent an item that has unreasonable or restrictive open fees.

The patent period should be set between five or ten years. Possibly allowing variation based
on the technology being patented, and the cost of development.

The reason for setting the time period is to protect the original developer thereby giving them
a chance to make a profit, and then, at the end of the time period, to allow society to profit
from the general availability of the technology.

This is the hardest part of the whole discussion, since it must cater for (at least) the following kinds
of development:

  • The Clever Person. They sit in a comfy chair and sip whisky, their mind wandering over the
    days problems. Just when they are about to
    nod off, they sit bolt upright and say 'That's an interesting idea'.
  • The Lucky Person (who may also be a clever person).
    They work away at building new quake
    levels for a small company in Idaho. One day they notice that the randomization method they
    chose for building monsters also happens to be a very fast way of factoring prime numbers.
    (Note: If they are a clever person, then we will never hear about this discovery).
  • The Researcher (who may also be a clever person, one hopes). Their daily work is to seek
    out the technology being patented.
  • The Visionary.
    They may be any of the above, but have the disadvantage that they design
    a technology that requires non-existant underlying technology before it can come to market.
    An example migh be a prime number factoring algorithm that requires a quantum computer to run,
    or complex image processing algorithms which in 1972 could
    only run on supercomputers.
  • The Funding Body

    (who are, despite overwhelming evidence to the contrary, usually clever).
    They pay for a Researcher or Researchers to develop new technologies. They may fund a project
    for many years before it bears fruit - sadly, such commitment is less and less common.

  • The Entrepreneur (who, if they are clever, can be quite dangerous).
    They buy ideas from Clever and Lucky people, and occasionally from Researchers.

The system must allow Clever and Lucky people as well as independant Researchers
the time to develop and market a product, or to sell
it at a reasonable price, and allow the Entrepreneur time to develop and market a product.

It must also allow Funding Bodies time to develop and market a product (which is probably
already in the pipeline), and to recover their costs and, ideally, make a profit. This must
recognize that funding bodies actually fund 20 projects, and only one bear fruit. So the
system must allow disproportionate profits for successful technologies.

Finally, it should allow the Visionary to publish their discovery, while not depriving
them of a chance to profit from it.

The solution seems to be as follows:

  • In the case of Funding Bodies, patents last 5 years from the date the project has
    made a 100% profit on the original direct development costs, or 10 years at maximum.

  • In the case of everybody else, the patent lasts 7 years from the date that the
    first Mass Market release is made, or 5 years from the first release of a product by the
    patent holder, or 10 years at maximum. Note that this provision provides some protection
    for Visionaries.