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The Fuzzy Software Patent Debate Rages On

By Heather J. Meeker
Feb 23, 2005 5:00 AM PT

The European Commission recently tolled the death knell for the EU Software Patent Directive, or more precisely, the "Directive on the Patentability of Computer-Implemented Inventions."

The Fuzzy Software Patent Debate Rages On

Like most Americans, I am fairly clueless about the EU political process, and I wouldn't presume to write about exactly how it was killed. But the decision may have been swayed by an eleventh-hour public relations pitch against the directive by open-source spokesmen from the United States. On that aspect, I will add my two cents.

A delegation of open-source leaders, led by Linus Torvalds, published an "Appeal" at, calling software patents "dangerous to the economy at large, and particularly to the European economy."

Look Beyond the Rhetoric

Leaders of the open-source software movement have long been harsh critics of software patents. The GPL itself says, "any free program is threatened constantly by software patents." The appeal contends that copyright provides adequate protection for the creations of software authors. The Appeal advocated reliance on copyright law, rather than patent law, for the protection of software.

Not long afterward, in late January, the European Parliament's Legal Affairs Committee recommended scrapping the pending directive, extending the debate until at least the end of the year. There may ultimately be an EU software directive that affects the scope of software patenting in Europe, but not any time soon.

Once upon a time, we intellectual property lawyers got to live peacefully in our ivory towers. Those were the good old days. Now it seems that intellectual property policy issues have become fraught with partisan rhetoric. Most open-source promoters are against software patents. Most corporate spokesmen side with patents, period, whether they cover software or not. But it is worth looking beyond the rhetoric.

Copyright is an odd champion for the side of light. It would be neither original nor controversial to observe that copyright is an awkward scheme to protect computer software. At best, it is a square peg in a round hole. Before you take up the crusade of copyright, remember what it covers. Copying -- sounds like something you do to a book. Public performance -- sounds like a play or a film, right? Derivative works -- that sounds like an album by Vanilla Ice. This should be no surprise: The copyright law was written to cover books and music and plays and films.

Protecting Expression

Copyright protects expression, not ideas. But software is not really all that expressive. When was the last time you went to a poetry reading and heard someone reciting C++? ("Wow, that recursive reference in his data structure was so deliciously ironic!") More important, software does not derive its value from expression; it derives its value from function. The fact that most software companies can get away with distributing software in object code form proves this point.

Code may be as elegant as a Chanel suit, but most people don't care. They want products to work, and they want software that makes them work. Users not only don't care how elegant code is, they actively don't want to know. I love my TiVo and I love my PDA -- not because they contain lovely code, but because I will never have to see what code is in them. I know in my heart that I am not alone.

This makes protection of software via copyright tricky, because functional elements or ideas are not protected -- only expression. Not surprisingly, actually identifying software copyright infringement is like reading tea leaves. It's straightforward, of course, when someone wholesale copies a piece of software. This catches up the shameless counterfeiters. But people using software to develop products rarely copy software without modification.

If they re-write code, they can come up with a very different looking set of expression that performs the same function. Have they infringed the copyright? That is not so straightforward. The serious copyright battles are over the copying of bits and pieces, structures, design elements and so forth -- and applying copyright law to those cases is difficult, expensive and unpredictable.

Leave It to Lawyers

Unless you are a copyright lawyer, you probably don't know that the rule for assessing infringement in several U.S. judiciary circuits is the "abstraction, filtration, comparison" test. The court will "first break down the allegedly infringed program into its constituent structural parts. Then, by examining each of these parts for such things as incorporated ideas, expression that is necessarily incidental to those ideas, and elements that are taken from the public domain, a court would then be able to sift out all non-protectable material. Left with a kernel, or possibly kernels, of creative expression after following this process of elimination, the court's last step would be to compare this material with the structure of an allegedly infringing program."

Easy as pie, huh? And if you aren't in a circuit that uses this test, like the second, ninth or tenth judicial circuit, the law could be different. And you know which judicial circuit you are in, don't you. Don't you?

Compare patent law, which allows the patent holder to prevent others from exploiting products that fall within explicit written claims of the patent -- which, by the way, are available for anyone to read. (That's why it's called a "patent" -- it is patently available to all.) You lay the product on one side, and the claims on the other. If the claim covers the product, it infringes. If not, it doesn't. Engineering around the claim is a relatively predictable process.

OK, I confess, it's not quite that simple. There are a bunch of pesky exceptions like the doctrine of equivalents. But basically, it's a more predictable process than engineering around a copyright. How do I know? You can hire a lawyer to write an opinion on whether a product infringes a patent. You can find such a lawyer in the yellow pages -- I am not kidding, you can. That lawyer can even be legally liable if his opinion is wrong. But you say you want to hire a lawyer to write an opinion on whether a product infringes a copyright? Good luck with that. People who read tea leaves don't give guarantees.

Wrong Direction

Open-source advocates have embraced copyright as a protection scheme because they perceive it as flexible. That is true -- maybe too true. Also, to be fair, copyright protection is cheap (costing zilch) and patent protection is expensive (costing many thousands). But it seems to me that the rhetoric may be leading us in the wrong direction.

If you oppose software patents, it's only fair to articulate why software patents are worse than any other patents. I don't hear engineers soliloquizing about how awful it is to patent a chemical treatment process or an electronic device. Actually, the problem with U.S. software patents, if anything, is not their essential nature, but their quality. There are some reasons why software patents, in practice, tend to be issued when they should not be, and therefore are perceived as of poor quality.

In this respect, patents and copyrights are very different. Copyrights need not be filed or registered, and there is a very low threshold for protection. Quality of copyrights is not really an issue. Patents, on the other hand, are awarded after scrutiny by the Patent and Trademark Office. The PTO is required to refuse to issue patents that are "obvious" based on prior art, which means roughly that they are not sufficiently inventive to justify the award of the patent.

But until that last couple of decades, software patents were much less common than today, and many software developers did not seek patent protection. Some have argued that, in the 1990s, when software patents exploded in the U.S., the PTO lacked sufficient institutional knowledge of prior art to weed out the obvious claims. This institutional knowledge exists mostly in the form of previously issued patents, so a sudden and dramatic increase in filings causes a prior art vacuum. This has been borne out empirically, in the sense that many U.S. software patents -- after being issued by the PTO -- are later invalidated due to obviousness based on prior art, in lawsuits where the patent holders try to assert them against infringers.

A Clear Light

It is unclear whether this problem would translate to the EU. You might not guess it from the rhetoric, but the EU already allows software patents. The directive was intended to harmonize EU software patents, not create them of whole cloth, and to clarify the scope of software patents that may issue.

The quality of patents issued by the EU has actually been perceived by some as higher than those issued in the U.S., meaning fewer patents are issued, and fewer are facially obvious. The USPTO is historically underfunded, and budget deficits and the skyrocketing number of software and business method patent applications have not helped. For all we know, the same thing could happen in the EU, but it is not a certainty.

So, what I would like anti-patent activists to consider is this: Are software patents really a bad idea? Or just a good idea, badly executed? Or a good idea, executed as well as good ideas tend to get executed in the real world? By posing this question, I hope to retreat to my ivory tower for a while, with a cold compress, while the rhetoric subsides enough for me to take a nice nap -- at least until the EU takes up the question again.

Heather Meeker is a shareholder at the international law firm Greenberg Traurig, LLP, and specializes in intellectual property transactions for software and other technology clients. Ms. Meeker is the co-chair of the Open Source Committee of the Science and Technology Section of the American Bar Association. She advises clients regularly on open-source licensing issues and open-source business strategies.

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