Free Software, Free Society: selected essays of Richard M. Stallman. 2nd edition.

to entertain a higher standard in judging unobviousness, it helps to save the prior art for them. Thus, the proposals to “make the system work better” by providing the Patent Office with a better database of prior art could instead make things worse.

It is very hard to make a patent system behave reasonably; it is a complex bureaucracy and tends to follow its structural imperatives regardless of what it is “supposed” to do. The only practical way to get rid of the many obvious patents on software features and business practices is to get rid of all patents in those fields. Fortunately, that would be no loss: the unobvious patents in the software field do no good either. What software patents do is put software developers and users under threat.

The patent system is supposed, intended, to promote progress, and those who benefit from software patents ask us to believe without question that they do have that effect. But programmers’ experience shows otherwise. New theoretical analysis shows that this is no paradox. (See http://researchoninnovation.org/patent.pdf.) There is no reason why society should expose software developers and users to the danger of software patents.

Copyright c 2006 Richard Stallman

This essay was originally published on http://gnu.org, in 2006. This version is part of Free Software, Free Society: Selected Essays of Richard M. Stallman, 2nd ed. (Boston: GNU Press, 2010).

Verbatim copying and distribution of this entire chapter are permitted worldwide, without royalty, in any medium, provided this notice is preserved.

Chapter 24. Software Patents and Literary Patents

When politicians consider the question of software patents, they are usually voting blind; not being programmers, they don’t understand what software patents really do. They often think patents are similar to copyright law (“except for some details”)—which is not the case. For instance, when I publicly asked Patrick Devedjian, then Minister for Industry in France, how France would vote on the issue of software patents, Devedjian responded with an impassioned defense of copyright law, praising Victor Hugo for his role in the adoption of copyright. (The misleading term “intellectual property” promotes this confusion—one of the reasons it should never be used.)

Those who imagine effects like those of copyright law cannot grasp the disastrous effects of software patents. We can use Victor Hugo as an example to illustrate the difference.

A novel and a modern complex program have certain points in common: each one is large, and implements many ideas in combination. So let’s follow the analogy, and suppose that patent law had been applied to novels in the 1800s; suppose that states such as France had permitted the patenting of literary ideas. How would this have affected Victor Hugo’s writing? How would the effects of literary patents compare with the effects of literary copyright?

Consider Victor Hugo’s novel Les Miserables. Since he wrote it, the copyright belonged only to him. He did not have to fear that some stranger could sue him for copyright infringement and win. That was impossible, because copyright covers only the details of a work of authorship, not the ideas embodied in them, and it only restricts copying. Hugo had not copied Les Miserables, so he was not in danger from copyright.

Patents work differently. Patents cover ideas; each patent is a monopoly on practicing some idea, which is described in the patent itself. Here’s one example of a hypothetical literary patent:

• Claim 1: a communication process that represents in the mind of a reader the concept of a character who has been in jail for a long time and becomes bitter towards society and humankind.

• Claim 2: a communication process according to claim 1, wherein said character subsequently finds moral redemption through the kindness of another.

• Claim 3: a communication process according to claims 1 and 2, wherein said character changes his name during the story.

If such a patent had existed in 1862 when Les Miserables was published, the novel would have conflicted with all three claims, since all these things happened to Jean Valjean in the novel. Victor Hugo could have been sued, and if sued, he would have lost. The novel could have been prohibited—in effect, censored—by the patent holder.

Now consider this hypothetical literary patent:

• Claim 1: a communication process that represents in the mind of a reader the concept of a character who has been in jail for a long time and subsequently changes his name.

Les Miserables would have been prohibited by that patent too, because this description too fits the life story of Jean Valjean. And here’s another hypothetical patent:

• Claim 1: a communication process that represents in the mind of a reader the concept of a character who finds moral redemption and then changes his name.

Jean Valjean would have been forbidden by this patent too.

All three patents would cover, and prohibit, the life story of this one character. They overlap, but they do not precisely duplicate each other, so they could all be valid simultaneously; all three patent holders could have sued Victor Hugo. Any one of them could have prohibited publication of Les Miserables.

This patent also could have been violated:

• Claim 1: a communication process that presents a character whose given name matches the last syllable of his family name.

through the name “Jean Valjean,” but at least this patent would have been easy to avoid.

You might think that these ideas are so simple that no patent office would have issued them. We programmers are often amazed by the simplicity of the ideas that real software patents cover—for instance, the European Patent Office has issued a patent on the progress bar, and a patent on accepting payment via credit cards. These patents would be laughable if they were not so dangerous.

Other aspects of Les Miserables could also have run afoul of patents. For instance, there could have been a patent on a fictionalized portrayal of the Battle of Waterloo, or a patent on using Parisian slang in fiction. Two more lawsuits. In fact, there is no limit to the number of different patents that might have been applicable for suing the author of a work such as Les Miserables. All the patent holders would say they deserved a reward for the literary progress that their patented ideas represent, but these obstacles would not promote progress in literature, they would only obstruct it.

However, a very broad patent could have made all these issues irrelevant. Imagine a patent with broad claims like these:

• A communication process structured with narration that continues through many pages.

• A narration structure sometimes resembling a fugue or improvisation.

• Intrigue articulated around the confrontation of specific characters, each in turn setting traps for the others.

• Narration that presents many layers of society.

• Narration that shows the wheels of hidden conspiracy.

Who would the patent holders have been? They could have been other novelists, perhaps Dumas or Balzac, who had written such novels—but not necessarily. It isn’t required to write a program to patent a software idea, so if our hypothetical literary patents follow the real patent system, these patent holders would not have had to write novels, or stories, or anything—except patent applications. Patent parasite companies, businesses that produce nothing except threats and lawsuits, are booming nowadays.

Given these broad patents, Victor Hugo would not have reached the point of asking what patents might