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+1. Giving the Software Field Protection from Patents {#giving-the-software-field-protection-frompatents .chapter}
+====================================================
+
+@firstcopyingnotice{{ See also my article “Patent Reform Is Not Enough,”
+at <http://gnu.org/philosophy/patent-reform-is-not-enough.html>.
+@medskip @footnoterule @smallskip Copyright © 2012, 2013 Free Software
+Foundation\
+ A version of this article was first published on the Wired web site, as
+“Let’s Limit the Effect of Software Patents, Since We Can’t Eliminate
+Them” (Wired, 1 November 2012,
+<http://wired.com/opinion/2012/11/richard-stallman-software-patents/>).\
+ It was published on <http://gnu.org> in 2012. This version is part of
+@fsfsthreecite}
+
+Patents threaten every software developer, and the patent wars we have
+long feared have broken out. Software developers and software
+users—which, in our society, is most people—need software to be free of
+patents.
+
+The patents that threaten us are often called “software patents,” but
+that term is misleading. Such patents are not about any specific
+program. Rather, each patent describes some practical idea, and says
+that anyone carrying out the idea can be sued. So it is clearer to call
+them “computational idea patents.”
+
+The US patent system doesn’t label patents to say this one’s a “software
+patent” and that one isn’t. Software developers are the ones who make a
+distinction between the patents that threaten us—those that cover ideas
+that can be implemented in software—and the rest. For example, if the
+patented idea is the shape of a physical structure or a chemical
+reaction, no program can implement that idea; that patent doesn’t
+threaten the software field. But if the idea that’s patented is a
+computation, that patent’s barrel points at software developers and
+users.
+
+This is not to say that computational idea patents prohibit only
+software. These ideas can also be implemented in hardware—and many of
+them have been. Each patent typically covers both hardware *and*
+software implementations of the idea.
+
+### The Special Problem of Software {#the-special-problem-of-software .subheading}
+
+Still, software is where computational idea patents cause a special
+problem. In software, it’s easy to implement thousands of ideas together
+in one program. If 10 percent are patented, that means hundreds of
+patents threaten it.
+
+When Dan Ravicher of the Public Patent Foundation studied one large
+program (Linux, which is the kernel of the GNU/Linux operating system)
+in 2004, he found 283 US patents that appeared to cover computing ideas
+implemented in the source code of that program. That same year, a
+magazine estimated that Linux was .25 percent of the whole GNU/Linux
+system. Multiplying 300 by 400 we get the order-of-magnitude estimate
+that the system as a whole was *threatened by around 100,000 patents.*
+
+If half of those patents were eliminated as “bad quality”—mistakes of
+the patent system, that is—it would not really change things. Whether
+100,000 patents or 50,000, it’s the same disaster. This is why it’s a
+mistake to limit our criticism of software patents to just “patent
+trolls” or “bad quality” patents. The worst patent aggressor today is
+Apple, which isn’t a “troll” by the usual definition; I don’t know
+whether Apple’s patents are “good quality,” but the better the patent’s
+“quality” the more dangerous its threat.
+
+We need to fix the whole problem, not just part of it.
+
+The usual suggestions for correcting this problem legislatively involve
+changing the criteria for granting patents—for instance, to ban issuance
+of patents on computational practices and systems to perform them. This
+approach has two drawbacks.
+
+First, patent lawyers are clever at reformulating patents to fit
+whatever rules may apply; they transform any attempt at limiting the
+substance of patents into a requirement of mere form. For instance, many
+US computational idea patents describe a system including an arithmetic
+unit, an instruction sequencer, a memory, plus controls to carry out a
+particular computation. This is a peculiar way of describing a computer
+running a program that does a certain computation; it was designed to
+make the patent application satisfy criteria that the US patent system
+was believed for a time to require.
+
+Second, the US already has many thousands of computational idea patents,
+and changing the criteria to prevent issuing more would not get rid of
+the existing ones. We would have to wait almost 20 years for the problem
+to be entirely corrected through the expiration of these patents. We
+could envision legislating the abolition of these existing patents, but
+that is probably unconstitutional. (The Supreme Court has perversely
+insisted that Congress can extend private privileges at the expense of
+the public’s rights but that it can’t go in the other direction.)
+
+### A Different Approach: Limit Effect, Not Patentability {#a-different-approach-limit-effect-not-patentability .subheading}
+
+My suggestion is to change the *effect* of patents. We should legislate
+that developing, distributing, or running a program on generally used
+computing hardware does not constitute patent infringement. This
+approach has several advantages:
+
+-   It does not require classifying patents or patent applications as
+    “software” or “not software.”
+-   It provides developers and users with protection from both existing
+    and potential future computational idea patents.
+-   Patent lawyers cannot defeat the intended effect by writing
+    applications differently.
+
+This approach doesn’t entirely invalidate existing computational idea
+patents, because they would continue to apply to implementations using
+special-purpose hardware. This is an advantage because it eliminates an
+argument against the legal validity of the plan. The US passed a law
+some years ago shielding surgeons from patent lawsuits, so that even if
+surgical procedures are patented, surgeons are safe. That provides a
+precedent for this solution.
+
+Software developers and software users need protection from patents.
+This is the only legislative solution that would provide full protection
+for all. We could then go back to competing or cooperating…without the
+fear that some stranger will wipe away our work.
+
+------------------------------------------------------------------------
+
+This document was generated by *tonghuix* on *March 25, 2016* using
+[*texi2html 1.82*](http://www.nongnu.org/texi2html/).\