Software Patents

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Why the software industry does not need patent protection

"In other industries, research continues up to a point where further research costs too much to be feasible. At this stage, the industry's output merelyconsists of replacing parts that have worn out.

However, in the software sector, a computer program that is fully debugged will perform its function forever without requiring maintenance or modification. “What this means is that unlike socks that wear out, and breakfast cereal that is eaten, a particular software product can be sold to a particular customer at most once. If it is to be sold to that customer again, it must be enhanced with new features and functionality.” This inevitably means that even if the industry were to approach maturity, any software company that does not produce new and innovative products will simply run out of customers! Thus, the industry will remain innovative whether or not software patents exist." (

Why Software Patents are a bad thing, by Open Democracy:

" Software programming has a relatively low financial barrier to entry. It relies on the manipulation of mathematical algorithms between one man and his machine. Progress in the sector takes place in swift but discrete steps. Each step contributes something to the art of programming: each software programme builds on the last. It is this environment – accretive, open-ended and egalitarian – that has allowed rapid progress in the software industry to enhance the utility and connectivity of the computers people use in their daily lives. In the patent-free environment, contributions to the common pool of programming knowledge come from all corners of the world, from the amateur hacker working until 4am in his bedroom to corporations leasing the most expensive real estate in Silicon Valley. Richard Stallman, founder of the Free Software Foundation, likens reading a piece of software code to walking around a city – the expert eye will recognise “architectural periods", little stylistic ticks that identify a piece of recycled code with a particular time, even place. Software patents take chunks of code out of this vast pool of shared knowledge and lock them down using IP law. United States case law already shows how companies can use such patents to claim ownership of code that had previously been regarded as an open standard. The effect is not simply to appropriate and centralise a shared knowledge resource, but to make it impossible to create a new programme without infringing the patent. Where software is concerned, patents obliterate progress… In effect, corporations use software patenting to secure a monopoly and discourage the entrepreneurial activity of start-ups. The result is to freeze, not foster, innovation – the very opposite of patent law’s original intention. Moreover, as intellectual property law combines with the global shift towards a “knowledge economy", the regressive effect of such lockdowns acquires a more explicitly political dimension. The application of strong IP law is a game only the big boys, with their dedicated legal teams, can play. Knowledge, once viewed as a commons, becomes a commodity – just like land or labour in an agricultural or industrial economy – whose owners ordain themselves the new economy’s ruling class."

Some leading architects of the software sector are quite explicit about this. Bill Gates set his stall out as early as 1991:

“The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose... Established companies have an interest in excluding future competitors." ( )

Summary of a report by the Danish Board of Technology:

"The general trend is a continuous strengthening and expansion of patent rights. More and more products and processes are being patented and more and more people can obtain patents. The term of protection has been extended, administrative burdens reduced, and the protection and enforcement of patents strengthened. While advances in technology (especially in the fields of information- and biotechnology) leap forward at a rapid pace, amendments to the patent law move slowly. This imbalance may translate into a possible mismatch between the reward offered by the patent system and the social benefits gained.

For these reasons The Danish Board of Technology has set up a working group of experts from different fields of expertise to discuss the future of the patent system - with the aim of stimulating a broad debate among as well experts as politicians in Europe about the future of the patent system:

-Has the notable rise in the number of patents promoted or hampered technological and economic development?

-Have the enhanced possibilities for patenting in public research institutions promoted or hampered development of knowledge - especially basic research?

-Are the various limitations to patent protection - both within and outside the system itself - sufficiently countering the potentially negative effects of the patent system?

-Is the patent system sufficiently flexible and effective to contain the very different trends in technological development?

-Can the current patent practise ensure effective patenting procedures, a high patent quality and effective enforcement?

-What should be patentable and what should not?

These are some of the questions the working group has addressed and it now presents its deliberations, conclusions and recommendations for a patent system of the future.

Among these is the recommendation of the establishment of a remuneration-based patent system in which a patent holder cannot prohibit the exploitation of his patent. In light of the many unanswered questions regarding the effects of the patent system, another recommendation is to develop a more rigorous basis for instituting reform. When instituting reforms, a kind of "precautionary principle" should be followed in which implementation proceeds only if it is ascertained that technological advancement will result.

The working group´s conclusion is that it is no longer tenable to keep shoring up the old system without producing solid evidence of the need for doing so. In particular, advancements in biotechnology and information technology have put the system under pressure. Yet, the impact of these advancements has resulted in positive discussions about the fundamental nature of the system itself. The group recommends slowing down and attempting to better control the patent system's evolution in order to promote the appropriate development and exchange of knowledge that is needed for future growth and welfare." (

Status Report 2008


"This report provides an overview of the recent history of software patents from an economic and legal perspective.

On the economic front, there continue to be billions of dollars in litigation over software patents every year, and such suits are increasingly against companies in the general economy who have software patent liability simply because they have a web site. Several pro-software patent academics have searched the existing data for evidence that software patents foster innovation, and failed to find any.

On the legal front, the courts have begun to take notice, and from the Patent Office to the Supreme Court, judges have begun to indicate a desire to revise the current policy that everything is patentable subject matter. Expect to see the restoration of many important limits on what may be patented." (

More Information

  1. lnformation about the struggle against the adoption of software patents in the EU, see at
  2. End Software Patents
  3. Why software patents are harmful


The following is an educational book explaining why these issues are important: La bataille du logiciel libre. 10 clefs pour comprendre . Thierry Noisette et Perline La Découverte 2004

Book site located at; author site of Perline located at