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{\Large
Patent Reform Is Not Enough}\footnote{
Originally published in \htmladdnormallink{
GNU's Bulletin, vol. 1 no. 13.}{http://www.gnu.org/bulletins/bull13.html}
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{\small
\htmladdnormallink{RICHARD M. STALLMAN}{http://www.gnu.org/people/rms}
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When people first learn about the problem of software patents, their
attention is often drawn to the egregious examples: patents that cover
techniques already widely known.  These techniques include sorting a
collection of formulae so that no variable is used before it is
calculated (called ``natural order recalculation'' in spreadsheets), and
the use of exclusive-or to modify the contents of a bit-map display.

Focusing on these examples can lead some people to ignore the rest of
the problem.  They are attracted to the position that the patent system
is basically correct and needs only ``reforms'' to carry out its own
rules properly.

But would correct implementation really solve the problem of software
patents?  Let's consider an example.

In April 1991, software developer Ross Williams began publishing a
series of data compression programs using new algorithms of his own
devising.  Their superior speed and compression quality soon attracted
users.

The following September, when the FSF was about a week away from
releasing one of them as the new choice for compressing our distribution
files, use of these programs in the United States was halted by a newly
issued patent, number 5,049,881.

Under the current patent rules, whether the public is allowed to use
these programs (i.e., whether the patent is invalid) depends on whether
there is "prior art": whether the basic idea was published before the
patent application, which was on June 18, 1990.  Williams' publication
in April 1991 came after that date, so it does not count.

A student described a similar algorithm in 1988--1989 in a class paper
at the University of San Francisco, but the paper was not published.
So it does not count as prior art under the current rules.

Reforms to make the patent system work ``properly'' would be no help
here.  Under the rules of the patent system, this patent seems valid.
There is no prior art for it.  It is not close to obvious, as the patent
system interprets the term.  (Like most patents, it is neither
worldshaking nor trivial, but somewhere in between.)  The fault is in
the rules themselves, not their execution.

In the US legal system, patents are intended as a bargain between
society and individuals; society is supposed to gain through the
disclosure of techniques that would otherwise never be available.  It is
clear that society has gained nothing by issuing patent number
5,049,881.

Under current rules, our ability to use Williams's programs depends on
whether anyone happened to publish the same idea before June 18, 1990.
That is to say, it depends on luck.  This system is good for promoting
the practice of law, but not progress in software.

Teaching the Patent Office to look at more of the existing prior art
might prevent some outrageous mistakes.  It will not cure the greater
problem, which is the patenting of every {\it new} wrinkle in the use
of computers, like the one that Williams and others independently
developed.

This will turn software into a quagmire.  Even an innovative program
typically uses dozens of not-quite-new techniques and features, each
of which might have been patented.  Our ability to use each wrinkle
will depend on luck, and if we are unlucky half the time, few programs
will escape infringing a large number of patents.  Navigating the maze
of patents will be harder than writing software.  As {\it The
Economist} says, software patents are simply bad for business.

If you'd like to do something, the easiest thing to do is to join the
League for Programming Freedom.

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{\small 
Copyright \copyright{} 1996, 1997, 1998 Free Software Foundation, Inc.,
59 Temple Place - Suite 330, Boston, MA  02111,  USA

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Verbatim copying and distribution of this entire article is
permitted in any medium, provided this notice is preserved.
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