Stop patent mischief by curbing patent enforcement

I’ve said it before and I’ll say it again: Software patents are evil. They allow the work of innovators to be ambushed and raise the cost of technology innovation. But finding a viable solution to the software patent mess isn’t easy.

As it happens, Wired is running a series of articles on this topic, including an essay by Richard Stallman, founder and president of the Free Software Foundation. Stallman proposes limiting the enforceability of patents against software, noting that the subjects of patents “can also be implemented in hardware … and many of them have been. Each patent typically covers both hardware and software implementations of the idea.”

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The result, says Stallman, is severe difficulty in closely defining a “software patent” to accomplish what many of us would really like: ban software patents outright. Instead, Stallman says:

My suggestion is to change the effect of patents. We should legislate that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement.

Doing this would require legislation, and although his proposal sounds appealing, the devil is in the details.

Stallman’s proposal is interesting, and it’s similar to a solution I worked on while at Sun Microsystems. Like the proposal made by Mark Lemley, it has the advantage of limiting existing patents, rather than merely changing what is patentable going forward. While other changes are also probably needed — adding cost to patent trolling to make it less economically viable, for example — the approach of limiting the enforceability of patents against software seems to be the most fruitful field of investigation.

A lesson from Europe The foundational problem in reforming patent law in this area is drafting exactly what does and does not constitute software, as I discovered in 2005 when I spoke out against a proposal in the European Parliament to legitimize software patents throughout Europe. The Software Patent Directive was extremely unpopular with individual software developers, and a coalition of voices across open source opposed it. This culminated in mass demonstrations in Brussels in front of the Parliament building — rare enough, but unprecedented for a technology cause.

The opposition to software patents was effectively neutralized by business interests. As I explained in the context of the U.K. government’s standards consultation in May, in some industries, it’s considered normal for standards to include embedded patents; thus, software that implements them may be subject to royalties “on FRAND terms” — that is, with a promise of equal treatment. This practice is at the heart of the recent lawsuit between Apple and Motorola over standards-essential patents, for example. Both the telecom sector and the consumer electronics sector lobbied very hard to maintain the financial flow facilitated by software patents.

All the same, the Software Patent Directive was defeated, not due to the vocal opposition of Europe’s software developers, but because the proponents of the legislation could not prevent the single surviving amendment to the legislation — carefully framed and promoted by a small team of activists — from being accepted by the majority of legislators. Based on a similar, successful amendment to the earlier Copyright Directive, that amendment limited application of software patents to interfaces used for interoperability — in other words, to standards.

Patents and standards I’ve been considering this approach ever since the Directive was defeated, and I believe I have a proposal that will work for everyone. Let’s assume that patents will not be abolished, that patents continue to be issued for software, and that some industries choose to set standards that incorporate patents upon which royalties are due.

Can we adjust the system so that these patents cannot be used to harm the software industry, which to date hasn’t needed patents to drive innovation and within which patents create a significant and often expensive problem? Can we do so in a way that does not harm the established practices of the mobile telephony industry, where patent-bearing standards are the norm? I believe we can.

All standards processes today have a policy of requiring participants to declare they have patents relying on the standard. Some standards bodies use this information to impose FRAND royalty terms on participants; others use it to avoid the technologies that are subject to patents. FRAND terms are theoretically available to standards in most standards bodies, but approximately no software standards activities use them. In this context, FRAND terms discriminate unfairly against the majority of market participants, who’ve come to the standards activity and the marketplace in the expectation of recovering their costs through profitable competition — not through rent-seeking patent taxation.

Proposal: Standards only Consequently, all patents that drive innovation in a useful way are disclosed in the process of standardization. I propose that legislation be introduced to make software patents only enforceable against implementations of standards where the patent was declared in the standards process. All other software contexts should become off-limits for patent enforcement.

This approach would have numerous benefits. It would strongly encourage participation in standards processes by patent holders. It would eliminate the ability of entities existing only to exercise patents to blackmail unsuspecting innovators. It would reduce the cost of patent litigation when it did arise, due to the close scrutiny already paid to the technology in the standards process. It could even strengthen the revenues of those industries where patents in standards are the norm.

This is obviously a solution that needs much thought and negotiation among the parties involved. But the software industry can’t accept the ridiculous onslaught of anti-competitive use of software patents and rent-seeking behavior by patent trolls. Something must be done, and I believe this approach protects sufficient existing interests to be a viable path.

Sure, I’d love to get rid of software patents altogether. But limiting their use to the standards where all participants accept them is the next best thing.

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