Software Patents

A future without software patents

Software patents threaten users' freedom. They create legal and financial risks that make it more difficult to develop and distribute software. They harm innovation and hinder healthy competition in the software market.

What are software patents?

Patents are monopoly rights, granted by the state to the creator of a technical invention. When applied to software, patents give the company that holds them the right to block anyone from implementing a similar solution. Unlike copyright, patents do not restrict the use of an expression or the code itself. Instead, patents restrict the use of certain ideas - in case of software these ideas consist of algorithms and mathematics.

Bad for competition, bad for innovation

A large number of academic studies have shown that software patents are useless at encouraging innovation. They make it difficult for developers to write and market new programs which compete with existing ones. Software innovation is incremental, as new ideas build on older ones. If an old idea is blocked by a patent, then programmers cannot use it as a basis for their fresh ideas.

Patents are different from copyright, and arguably more harmful. Copyright merely gives authors a monopoly on a specific work, such as a text or a program. Patents give their owners a monopoly on all programs that use a given idea.

Patents encourage monopolies

Most patents in the IT world are held by large companies that have been in the market for a long time. Patents, which are expensive to file, maintain, and litigate, give them a powerful weapon against developers and companies that pose a threat to their market power, in both Free and proprietary software.

Status quo in Europe

The European Patent Convention says that "programs for computers" cannot be patented. Despite this, the European Patent Office (EPO) has developed a doctrine saying that "computer implemented inventions" can be patented, and has issued possibly tens of thousands of patents on software. Due to the diversity of Europe's jurisdictions, enforcing these patents was so difficult that it was almost never done. This protected Free Software developers in Europe from the patent system's worst excesses.

Under extraordinary pressure from the Free Software community, the European Parliament in 2005 rejected the software patent directive, which would have allowed patents on computer programs outright. Since then, efforts to make software patentable have shifted towards creating a "unitary patent" system for Europe. Under this system, the EPO would have greater independence to implement its patent-maximalist doctrine. The unitary patent system is also meant to make it easier to enforce patents. This raises the threat level for Free Software developers considerably.

How FSFE fights software patents

FSFE's goal is to abolish patents on software once and for all. This will take a lot of time, and a lot of hard work. Until we achieve this goal, we are working to limit the risks that patents pose for Free Software developers. We raise awareness for the harm which software patents cause with policy makers and businesses. We are shaping public policy at all levels to limit the impact of patents on software. We educate regulators in dealing with patent-based threats to competition, and are closely monitoring how the implementation of the unitary patent system in Europe affects software developers.

Free Software Foundation Europe
Schönhauser Allee 6/7, 10119 Berlin, Germany
Phone: +49-30-27595290