"It's completely unjust, and harmful, and stupid, to restrict how people are allowed to run their computers. And that's exactly what a software patent does.”
- Cambridge, Mass.-based computer guru Richard Stallman

Richard Stallman is best known as the founder of the GNU Project, which set out in 1984 to develop a free UNIX-style operating system. Many experts credit him with starting a trend that has led to tens of millions of people downloading, using and even improving non'-proprietary computer software.

In a sense, Stallman came to Calgary recently to preach to the choir, since the Calgary Unix Users' Group, which sponsored his visit, is composed of enthusiastic fans of software programs that don't require licensing from a big company such as Microsoft.

But his comments also resonate with beleaguered business software users, who find their costs increasing when they buy software or renegotiate software licences.

Richard Stallman

In an article in CIO Magazine, California-based patent attorney Lawrence Rosen estimates that five to 10 per cent of the price of commercial software represents a patent licensing fee. Even worse, if a patent holder refuses to co-operate and license the patent, a company may have to close down a line of business.

Rosen says that this is how Polaroid forced Kodak to "shutter its instant camera business.”

He also notes that some companies are amassing huge patent portfolios. In 2003 alone, according to its website, IBM Corp. "was awarded 3,415 U.S. patents, breaking its own record and surpassing the nearest patent earner by 1,400 patents."

Stallman feels that the software patent deck is stacked in favor of large corporations, and that it's really a house of cards based on fallacious reasoning. "Because programs, unless they are tiny programs, contain so many ideas, it's a certainty that if you develop or release or use a large program, that IBM has patents you are infringing," he says.

He notes that Canada has recently reinterpreted its patent laws through the work of a nearly secret committee, "rather quietly, so as to switch from not allowing software patents to allowing software patents.”

(Some of these changes were implemented in February 2005 as revisions to Chapter 16 of Canada's manual of Patent Office practice.) Stallman says that "this decision was made in consultation with representatives from large companies. Those are the ones who want software patents because they own a large fraction of them, and software patents give them a sort of dominion over the field."

While Stallman is accurate in saying that most software patents go to large companies, small businesses and even individuals do own many as well.

Todd Simpson, president and CEO of Jasomi Networks, which has its development facility in Calgary, holds seven patents on hardware, software and business processes.

"I wouldn't separate software innovation from other types of innovation," he says. "The fundamental purpose of patents still exists, which is to put innovation into the public eye."

Simpson also says that "ideas spur other ideas," so even if a company doesn't choose to license a patented software technology, just looking at the filing documents may inspire a new way to solve a problem.

Stallman agrees that the purpose of the patent system is to discourage trade secrecy, but feels that it has become dysfunctional.

"Trade secrecy in 1800 usually meant that there was somebody who knew a technique and he just didn't tell anybody," he says.

"But nowadays, it typically means that millions of people have a copy of the recipe and yet theoretically the recipe has never been published, so they're all forbidden to tell anybody about it. Trade secret law has been twisted up to a point where it can't be justified."

He also argues that companies have become very adept at writing patents that are very vague and general.

So, he says, "all the details that you really need to know to do anything, they don't publish. They're not in the patent. So they get the best of both worlds.

They manage to keep most of the useful knowledge secret and they get a legal monopoly that they can use to attack anyone else that wants to figure out all that knowledge for themselves."

One point where Stallman and Simpson agree is that there are plenty of what Stallman terms "patent parasites" out there. These are companies that, as he puts it, "probably don't make anything except threats. They go around and threaten companies, squeezing money out of them."

Stallman warns companies trying to conduct e-commerce that, at least in the European Union, there are patents on features as fundamental as using a credit card to pay online. He urges people to take a look at "Your Webshop is Patented" (webshop.ffii.org), predicting that it will shock most business people.

Just about anyone can run afoul of patent owners and receive a surprise patent infringement letter in the mail. California-based Acacia Research Corp. controls 30 patent portfolios, which include 128 U.S. patents, according to its website.

They've been suing users of streaming media technology, and recently added cable TV giants Time Warner and Cablevision Systems Corp. to the defendant list.

They have also filed lawsuits against Intel, Texas Instruments and even, according to the Chronicle of Higher Education, some colleges and universities that offer distance education.

They were asking educational institutions to pay $5,000 US per year for the privilege of storing audio and video, and delivering them via the Internet.

What can somebody try to patent? Stallman notes that the "progress bar" which shows up in many programs is patented.

In fact, he learned that a software feature he himself invented years ago had been patented. "It was nice to know I've had a least one patentable idea in my life," he laughs, "but it's not nice to see that it was patented (by someone else)."

He was able to have that patent invalidated.

Predictably, Stallman doesn't have many nice things to say about patent lawyers.

He notes wryly that there's no patent on legal practices.

"They have carefully arranged that there are no patents on things like how to word or send a threatening letter, or how to file a lawsuit, or how to persuade a judge. This is why even IBM can't get any patents to make them (the lawyers) cross-license. So they have exempted themselves from the burdens that they impose on other fields."

Web Watch:
www.gnu.org
www.cuug.ab.ca
www-306.ibm.com/software/data/awards/patents.html

(Tom Keenan is a professor at the University of Calgary and an expert on technology and its social implications. He can be reached at keenan@businessedge.ca)