Thomas Lam

CST 300Writing Lab

Brian Robertson
9/23/2015

Software Patents

Software is everywhere in our modern society. Not just in the common locations such as our

cellphones and computers but also when we make credit card purchases, set our GPS to get home and

even using our microwaves. Most office employees now have both a computer they use at work and one

at home along with a cell phone and maybe even a tablet for personal use. All these electronic devices

are essentially a miniature version of computers. They respond to user inputs and have programs that

can be used. But the common factor between them all is that they are dependent on software to power

them. Without software, civilization will come to a screeching stop as we have become dependent on it.

One can surmise how profitable software can be with the need for applications and features to

satisfy needs and provide solutions. Innovative and creative engineers, coders and programmers are

racing to create the next big thing. All it takes is one software to launch a small startup that is working

from their parents garage to a unicorn startup valued in the billions. Twitter, Dropbox and Uber are

valued in the billions range simply by focusing on developing one software that is targeted at solving one

problem. Needless to say, software is big business not just for the companies that create them but also

to the engineers and programmers that are the backbone of these companies. The US Bureau of Labor

Statistics forecasts growth for software developers at 22% which is much faster than average and lists

the median pay to be $100,000 a year as companies lure, poach and recruit the best talent they can get

(bls.gov, 2014).

Software originated as early programming languages such as Fortran in 1956 to SQL in 1974 to

Python and Perl in the 1980s to todays more advanced software in the form of operating systems such
as Microsofts Windows. Software began as simple algorithms to give computer enthusiasts the ability to

control and direct computers into doing what they commanded. Software quickly accelerated from

being a hobby to unleashing its full potential as visionaries predicted the need for enterprise software.

ADP was one of the first visionaries as they developed payroll solutions for their customers. SAP

pioneered the path as the first company to create enterprise software for customer service and

managing business operations. The now well-known company Oracle actually coined their name from

their first major project codenamed Oracle which began as a contract order for the CIA (Novak, 2014).

Software in the past consisted of thousands of lines of codes which is miniature compared to todays

software in terms of scale. Microsoft announced their Windows XP operation system comes in at a total

45 million lines of code (Salkever, 2001).

But software is not made like other products made for consumers. Making software is not like

making a toaster, a television or a cellphone where the finalized product remains in a static form that

will never change again. Once these products complete testing and becomes gold-certified these items

have distinct traits and appearances. They must also go through different prototypes and testing but

software can be changed on the fly with quick revisions and patches whereas a physical product that is

completed and available for sale cannot be altered. Software programs is designed and built with a

focus on their function. This difference allows a software to be modified to different requirements for

the consumer whereas other products require the user themselves to adapt to the product.

As good as software is for humanity it does comes with its faults. Softwares weakness and

strength both lie in its creation. This has created a rift between software engineers as there are some

who oppose while others support patenting software. The issue is in that software is easily modified.

There are multiple ways to solve a computing problem. Eventually someone coding will stumble upon

algorithms and software already created by someone else. Where do we draw the line? Is Hello World

available for patenting? How can we distinguish ownership of ideas, software and code? Patents and
copyrights is societys answer to protect inventors and their creations. At first glance, why is there even

an argument to ban patents? If someone invested all the hard work, time and resources into their

product should they not profit from it? One would conclude that if one can protect their invention with

a copyright or a patent, why would they not? But even countries cannot reach a global consensus. In the

United States software can be patented but in the European Union software cannot be patented and

owned. When it comes to the debate of software patents there are two groups, those who oppose

patents on software and those who are for software patents.

One side of the debate are the programmers, organizations and software companies whose very

livelihoods and existence depend upon being able to create and sell their inventions. One of the main

arguments for software patentability is that most software engineers and programmers will be

unemployed as the selling of software becomes banned and no revenue will be earned by software

companies. The large software companies such as Microsoft, SAP, Oracle and Intuit whose primary

industry focus is in producing software will lost their primary portfolio of products. These companies do

not just hire software engineers and programmers but also have employees in sales, project planning,

human resources, marketing, IT, financial, customer service and other departments to operate and

support their products. Proponents argue many jobs will be lost as a result stopping patents on

software.

Those who are for patents also believe that patents encourage innovation as aspiring inventors

are driven by the economic benefit which can increase the valuations of small companies and startups

as well as establishing a monopoly through new features. Amazons 1-Click is a prime example of such

innovations. Amazon created and patented the 1-Click software. This software is valued in the billions

as it allows impulsive purchases by their customers. As the name implies, it allows quick purchases with

just one-click by storing their customers shipping and billing details. Extending this software to other e-

commerce vendors such as iTunes and other websites through licensing deals has contributed to
Amazons total revenue (Engleman, 2010). Patents also help document and credit those responsible into

the history books. Innovative software can also increase sales and revenue in a product by offering

features that the competition does not offer. This can come in the form of licensing agreements in which

the owner can receive royalties on their invention.

Companies that were historically rivals have created strategic partnerships by licensing each

others products to increase each others revenues. John Tu, one of the founders of Kingston Technology

discovered this in the companies early years when he and his fellow co-founder David Sun began

developing their own prototype memory modules out of their Los Angeles garage. Tu and Sun were

contacted by Digital Equipment Corp shortly and were offered $250,000 to license their design because

it would simply take too long to get a compatible memory product to market themselves (Eng, 2013).

Kingston Technology is now a $6 billion dollar revenue company in 2014. Market shares can also be

increased in a technological field when two parties collaborate by coming to the table and exchanging

their designs and plans for the purpose of creating interoperability. Groups and communities thrive and

grow through common grounds and interests.

The purpose of patents is for protection. Patents have set precedence in the past as defensive

tools in the court of law if one if sued for violating another organizations patents. The ability to

document the time of the invention and the design details protects one against accusations of patent

infringement. Filing patents also increases public awareness as the information must be publicly

disclosed for one to claim a copyright or patent.

On the other side of the argument lies the other programmers and groups such as the Free

Software Movement whose philosophy and goals conflict with those who are for software patentability.

Those who are against software patents believe patents only limit technological growth as well as

creating patent thickets as obstacles for developers. Patent thickets are roadblocks for developers as it

requires one to traverse a dense web of overlapping intellectual property, copyrights and patents. This
also opens up those are who simply looking to advance technology to lawsuits and accusations of

infringement. Patent thickets can be summarized in one quote from John Carmack who was the lead

programmer for popular video games such as Doom and Quake. Carmack is also known for his

contributions to 3D graphics, Oculus Virtual Reality and is even a literal rocket scientist as he founded

Armadillo Aerospace. As seasoned and experienced an engineer and scientist as Carmack is, even he has

run into patent thickets. Carmack states that: The idea that I can be presented with a problem, set out

to logically solve it with the tools at hand, and wind up with a program that could not be legally used

because someone else followed the same logical steps some years ago and filed for a patent on it is

horrifying. This is one of the main issues that opponents of software patents claim as it restricts

programmers and coders. Even if different parties develop the same solution at the same time, it simply

boils down to a race to whoever files the patent first. The loser is now resigned to 2nd place and should

they want to use the software they simultaneously created, will have to pay a licensing fee to the other

party who holds the patent.

Imagine a world where all software is open source and free of restrictions to all those who wish

to use and share their code. Opponents of patentability propose that this limits research and

development as well as incurring unneeded costs for R&D funding as engineers and teams must develop

alternate ideas to circumvent the map of patents. Unneeded costs incur if patent attorneys are required

and license fees for use of certain patents that are deemed critical and essential to reaching the final

product. Open source software has the potential to be a game-changer for programmers and students

alike. Open source software opens up all doors for possibility as imagination and creativity is no longer

restricted by copyrights and allows students to see real world code instead of the basic code they use in

academics. This will better prepare students for real world employment and projects as they will have a

smoother transition after seeing read world code.

 Companies who already own patents in a field can exclude others and develop monopolies.

Microsoft has been accused of violating antitrust in 2001 in United States v. Microsoft Corporation

where the plaintiffs accused Microsoft of abusing their monopoly in the personal computers market.

Patents create monopolies as the highest bidder is allowed to own as many ideas they can possible

spend.

Software itself is based on mathematics. Software engineering and computer science students

are required to learn calculus courses as code is based upon true-or-false statements as well as

mathematical formulas. Programs are essentially step-by-step instructions within a programming

language such as C++ or Python. Code consists of abstract words that use functions such as adding

various text strings to generate a combination for output. The writing of code requires logic as the steps

must be executed in a specific order by following a defined flow chart but this logic can be simplified to

basic mathematical formulas. In the 1978 court case Parker v. Flook, it was determined by the Supreme

Court that math is not patentable (FindLaw). If math is not patentable then neither should software.

Job security is also at risk when software patents are allowed as companies often require their

employees to sign assignment agreement. These agreements basically say all creations from present

to the future that the employee has now belong to the employer. Many employers also require binding

agreements that their employees have no projects even as a hobby in their free time. These contracts

are mainly for companies versus other companies so that employees do not leave and start their own

rivaling company but have frequently reached beyond to lawsuits which harm new startup companies.

After a company owns the patent, they can now continue to lay off the programmers. Should the very

programmers who created the patented design themselves attempt to start their own business they will

be immediately hit with a lawsuit for patent infringement as they are not the official patent holders?

Their former employer now holds the patent due to the contract. This threatens job security by de-

valuing skilled employees by allowing terminations without fear of repercussions.

 Software patents should not be allowed as our modern day society becomes dependent on

electronic devices for everyday functions. Software powers the computers, tablets and our mobile

phones. The ability to share knowledge is the basic building blocks to a free society as others in our

community use that knowledge to learn and grow. This impact is far reaching as others go on to adapt

their experiences and knowledge for others on an exponential level. When one is forced to use software

that is copyrighted and proprietary, then they are deprived of their rights and freedoms. According to

the Free Software Foundation, the three software freedoms are: the freedom to analyze and change

software, the freedom to share copies of the software and the freedom to use the software for any

other purpose the user desires (FSF, 2015).

When these freedoms are removed, it hinders development for society as a whole. Many

software engineering and computer science students would benefit and most likely prefer to see real

world software code as opposed to basic programs and source codes that may only consist of less than

100 lines of code. Software patents bar the sharing and analyzing of source code which can help train

the next generation of programmers. If software is allowed to be modified then students and

professionals alike can then reverse engineer software for further study. This has the possibility to

advance our technology and knowledge far beyond where humanity is today as those not in the

development staff would now have the ability to learn from and improve upon the original product. For

software that may have been created by a team of ten to hundreds of engineers who were the only

ones that were allowed to view the source code, this freedom would allow thousands if not millions of

other programmers to understand and offer recommendations. With software patents also comes the

inability to share software as stated by the second software freedom. If software is allowed to be

analyzed then it must also be allowed to be shared as knowledge with others. Unfortunately in todays

software patent environment, companies and copyright owners often ban this using EULA (End User

License Agreements) or through NDA (Non-Disclosure Agreements). Should one be allowed to analyze
and share proprietary software, they are also further burdened as they are not allowed to use the copy

of the software for other purposes.

Software patents harm future developers as it allows algorithms, features and even ideas to be

owned. Video game designer Ernest Adams shares his frustration as the Japanese video game company

Namco owns U.S. patent number 5,718,632 which is a patent on load-time mini-games (Kuchera, 2008).

This feature gives video game players an activity in the form of mini-games to do while their level or

game loads such as playing blackjack or tic-tac-toe. This patent effectively restricts other programmers

and developers from not only adding activities to their games as time fillers but also the very idea to do

this itself. For example, when one is installing a large program such as an operating system that

developer is not able to add in a small mini-game to ease the long installation time due to patents such

as this.

History has shown how these patents can be harmful. Sega Games owns U.S. patent number

6,200,138 which is described as a game display method, moving direction indicating method, game

apparatus and drive simulating apparatus (Kuchera, 2008). Visualize an arrow that guides the driver

where they must head to. Sega owns this very idea. This translates into Sega not only owning the

algorithm for video games and simulators but also gives the company sole ownership of any methods to

give a user driving directions for a program, video game or simulator. So if one decides to make any

program that involves the player or user driving, they must find alternative ways to instruct their users

how to reach the objective. This software patent is the reason all driving games do not have arrows to

guide the player. Sega has enforced this copyright by suing Electronic Arts, Radical Games and Fox

Entertainment when this feature was used in the Simpsons video game Simpsons Road Rage and won

an undisclosed amount (Brown).

Computers are universal machines that will do anything you command it to. To command a

computer all one needs to do is learn a programming language and write these commands in the form
of software code. Now a computer user can customize their computer to do the functions they want it

to. In todays patent and copyright world, software is locked to only perform functions that the owner

wants their program to function. But not everybody requires the same function from a program as

needs and requirements change constantly and from person to person. The only way to customize a

software for individuals is to modify the source code of a program. But source code today is patented

and not shared with those who purchase the product. When one buys a car, they can modify, upgrade

and remove parts to suit their needs. The owner paid for the vehicle and is free to customize it the way

they desire. The owner of the vehicle controls the product they purchased. But in the world of

proprietary software, the company that holds the patent controls it. Companies that own the software

patents can put in malicious functionality such as compelling users to install harmful upgrades by

threatening the disabling of other features or even sabotage their customers such Microsoft which

informed the NSA about software bugs in their operating system to attack users (Stallman, 2014).

In the battle against software patents there is a scapegoat. Many large companies are pushing

for Open Source as a movement but this is their way to mislead users. Open Source still allows the

companies to retain copyrights and patents but it allows independent software engineers to help fix the

softwares bugs and errors free for them. This only fixes a small portion of the problem. Open Source

differs from the other movement known as Free Software. The Free Software movement seeks to

protect peoples basic freedoms by allowing access to the entire softwares code. As Wired stated that

programs such as Photoshop, are very expensive; others such as Flash Player are available gratis

either way, they subject their users to someone elses power (Watercutter, 2013). Proprietary software

continues to force users every day to give up their control over their computing devices such as laptops,

computers and even cell phones to an organization (Stallman, 2010).

Freedom is the ability to control ones life. So who controls your computer? Your cell phone?

You? Or does a large company? If users dont control the software, then it is the software that is actually
controlling the user. Software patents need to be stopped. Every individual has the freedom to use the

software they paid for how they choose. They have the freedom to not be limited by restricting terms

and conditions. They have the freedom to use the software after payment without expensive

subscription plans. They have the freedom to install the software on any device they desire.
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http://www.bls.gov/ooh/computer-and-information-technology/software-developers.htm

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September 29, 2015.

Novak, M. (2014, September 19). Larry Ellison's Oracle Started As a CIA Project. Retrieved September 29,

2015.

Salkever, A. (2001, June 11). Windows XP: A Firewall for All. Retrieved September 29, 2015.

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