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Software Patents Must Be Eliminated Essay

5270 words - 22 pages

Software Patents Must be Eliminated

Software patents threaten to devastate America's computer industry. Patents granted in the past decade are now being used to attack companies such as the Lotus Development Corporation for selling programs that they have independently developed. Soon new companies will often be barred from the software arena--most major programs will require licenses for dozens of patents, and this will make them infeasible. This problem has only one solution: software patents must be eliminated.

The Patent System and Computer Programs
The framers of the United States Constitution established the patent system so that inventors would have an incentive to share ...view middle of the document...

On this basis, software development was extremely profitable, and received considerable investment, without any prohibition on independent software development. But this scheme of things is no more. A change in U.S. government policy in the early 1980's stimulated a flood of applications. Now many have been approved, and the rate is accelerating.

Many programmers are unaware of the change and do not appreciate the magnitude of its effects. Today the lawsuits are just beginning.

Absurd Patents
The Patent Office and the courts have had a difficult time with computer software. The Patent Office refused until recently to hire Computer Science graduates as examiners, and in any case does not offer competitive salaries for the field. Patent examiners are often ill-prepared to evaluate software patent applications to determine if they represent techniques that are widely known or obvious--both of which are grounds for rejection.

Their task is made more difficult because many commonly-used software techniques do not appear in the scientific literature of computer science. Some seemed too obvious to publish while others seemed insufficiently general; some were open secrets.

Computer scientists know many techniques that can be generalized to widely varying circumstances. But the Patent Office seems to believe that each separate use of a technique is a candidate for a new patent. For example, Apple was sued because the Hypercard program allegedly violates patent number 4,736,308, a patent that covers displaying portions of two or more strings together on the screen--effectively, scrolling with multiple subwindows. Scrolling and subwindows are well-known techniques, but combining them is now apparently illegal.

The granting of a patent by the Patent Office carries a presumption in law that the patent is valid. Patents for well-known techniques that were in use many years before the patent application have been upheld by federal courts. It can be hard to prove a technique was well known at the time in question.

For example, the technique of using exclusive-or to write a cursor onto a screen is both well known and obvious. (Its advantage is that another identical exclusive-or operation can be used to erase the cursor without damaging the other data on the screen.) This technique can be implemented in a few lines of a program, and a clever high school student might well reinvent it. But it is covered by patent number 4,197,590, which has been upheld twice in court even though the technique was used at least five years before the patent application. Cadtrak, the company that owns this patent, collects millions of dollars from large computer manufacturers.

English patents covering customary graphics techniques, including airbrushing, stenciling, and combination of two images under control of a third one, were recently upheld in court, despite the testimony of the pioneers of the field that they had developed these techniques...

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