Eyes Above The Waves

Robert O'Callahan. Christian. Repatriate Kiwi. Hacker.

Tuesday 6 July 2010

Mozilla And Software Patents In New Zealand

Mozilla produces the Firefox Web browser, used by more than three hundred
million people around the world. Firefox is open source and is the result of a
collaboration of a large group of paid developers and volunteers. In fact,
Mozilla funds a team of paid developers in New Zealand working on core Firefox
code; some key innovations in Firefox, such as HTML5 video, are the work of our
New Zealand team. The work we do is some of the most highly skilled and
high-impact software development to be found anywhere in the world. I write
about software patents in my personal capacity as one of Mozilla's senior
software developers, and manager of our Auckland-based development team and
also our worldwide layout engine team. I also formerly worked for three years
at the IBM T.J. Watson Research Center where I participated in the filing of
several software patents based on my research.

The development and distribution of Firefox, like other open source software,
is threatened by the rise of software patents, because the patent system was
not designed for our environment. In software, especially cutting-edge software
like Firefox, every developer is an inventor; coming up with new ways of doing
things is not exceptional, it's what our developers do every single day.
Invention created at such a rate does not deserve or benefit from years of
monopoly protection. Indeed, it will be crippled if we are forced to play the
patent system "to the hilt", to acquire vast numbers of our own software
patents and to navigate the minefield of other people's patents.

The patent system was designed to promote invention and especially the
disclosure of "trade secrets" so that others can build on them. Research casts
doubt on whether it has succeeded at those goals (see

an example
), but even if it did, in software development --- especially
open-source software development --- it is clear that no patent incentive is
needed to encourage innovation and publication of our work. Copyright has long
been adequate protection for both closed-source and open source software.
(Open-source software permits copying, but relies on copyright protection to
enforce terms and conditions on copying.) Indeed, the patent system restricts
the dissemination of our work because the best way to distribute knowledge about
software is in the form of code, and that can make us liable for patent

Software development is uniquely able to have huge impact on the world because
copies can be made available to users for free. If we had charged users for each
copy of Firefox there is no doubt we would not be nearly as successful as we
have been, either at changing the world or even at raising money --- Mozilla
has substantial revenues from "tie-ins" such as search-related advertising.
The patent system threatens this business model, because most patent licensing
arrangements require the licensee to pay a per-unit fee. This is not
necessarily a problem for traditional manufacturing, where there is a per-unit
manufacturing cost that must be recouped anyway, but it completely rules out
a large class of software business models that have been very successful.

As well as developing software, Mozilla does a lot of work to improve Web
standards, and here too we have seen damage from the rise of software patents.
We want to ensure that people can communicate over the Internet, especially
on the Web, without being forced to "pay to play". We especially don't want
any organisation to be able to control what people can do and say on the Web via
their patent portfolio. We're already having problems with Web video because
many popular video encoding techniques are patented so the production,
distribution and playback of Web video often requires patent licensing from
organisations such as the MPEG-LA. This has slowed down the standardization and
improvement of Web video and forces the use of effectively non-free software in many

In summary, the patent system is not suited to software development. Software
development, especially open-source software development, is harmed by patents
and does not need patent protection. Development of the Internet is also
hampered by patents. New Zealand stands to benefit directly and indirectly from
the rise of the Internet and collaborative software development and should
protect these benefits by making a clear statement by rejecting the patentability of "inventions" implemented in software.


You made several unusually incisive statements that argue strongly against the need for patent protection, for example:
"Invention created at such a rate does not deserve or benefit from years of monopoly protection." "...no patent incentive is needed to encourage innovation and publication of our work." "...[patent protection] completely rules out a large class of software business models that have been very successful."
It's also clear that patent laws are being applied indiscriminately, to ordinary practices that have a dubious claim on patentability. You wrote, "...every developer is an inventor; coming up with new ways of doing things is not exceptional, it's what our developers do every single day." From the few software patents I have seen, it appears that many software patents are not sufficiently inventive or novel to warrent a patent, but simply cover what an ordinary person skilled in the art would do. The phrase "an ordinary person skilled in the art" is supposed to be sufficient to invalidate these patents under U.S. law, if only the criterion were applied intelligently.
I really want to agree with your point of view on software patents. Unfortunately I'm not sure about your argument that open source does not benefit from patents. Many (perhaps even most) full time open source contributors provide for themselves and their families through salaries from companies selling commercial software or advertising services. These businesses sustain themselves in part by products protected by patents. For example, I guess most of Mozilla's budget for developers ultimately comes from advertising models protected by patents.
There is also a curious 'reverse' way that patents aid open source. Some companies contribute to open source specifically to avoid becoming dependent upon patented software.
If we believe that software patents are not needed to sustain open source, then we need to come with a way to sustain open source projects without relying on businesses that themselves rely on patents. The only model I have seen where this could work is a 'co-op' model where businesses collaborate on a common open software platform that they use in closed proprietary products.
"In software, especially cutting-edge software like Firefox, every developer is an inventor; coming up with new ways of doing things is not exceptional, it's what our developers do every single day. Invention created at such a rate does not deserve or benefit from years of monopoly protection"
good point
You just gave a case for patents for not working on the web. Is there any weak piece in this article for applying it to hardware too?
Thank you for posting this. I'm amazed that people with no technical background assume there's need for 'protection', almost as a default position. Proper evidence based legislation (or indeed lees or no legislation) is needed - especially in this case.
Robert O'Callahan
jjb, I don't think there's any evidence that "patent protection" helps fund open source development in any significant way. If you have such evidence, please provide some.
Havvy, some of this applies to hardware, some of it doesn't. In particular the fourth paragraph is much less true for hardware ... hardware generally has non-negligible per-unit manufacturing costs.
jjb, software patent monopolies most benefit those that can accumulate them in largest numbers. This means patent monopolies benefit large established companies with many contracted employees and benefit wealthy speculative investors that buy them up in large quantities.
There are very high opportunity costs to society from enforcement of broad software monopolies (or software "taxes" to the patent owner).
Software is about producing lots of products. Do we want one small group of "monopolists" sitting back for 20 years to control the game and profits of the work of the many developers writing the software (or to bar them from doing the work)? [See also http://techdirt.com/article.php?sid=20100706/03220710079#c946 ]
Everyone else gains from the removal of these monopolies that try to put full control over a broad area into the hands of one person (who's success was from filing a broad description of a set of features and paying a fee ahead of anyone else who cares to do these things).
Here is a fake quotation of some professor talking to the students:
"The first student to post onto our class' web forum a broad outline of this week's problem set solution will get a passing mark. Everyone else will fail the assignment, unfortunately, since obviously everyone else would have copied the first person. Also, keep in mind that for the next 8 semesters the rest of you will not be able to get any credit for future problems that leverage the features described in that outline since its author (ie, the student that turns in the outline first) will have an 8 term monopoly on it. Finally, as a warning, the solution outline will be *non-obvious* to many of you, so don't think you will necessarily be able to submit the solution before the end of class today. Have fun and may the winner enjoy his or her monopoly for the next 8 terms. We'll create another monopoly again next week."
In response to jjb...if your "open source" relies on software patents it simply isn't open source.
Advertising has been a successful model for some businesses for 100s of years. Not sure why you think it needs patents.
Geoff Langdale
Spot on Rob.
Our business is quite secretive (not open source at all) and we also now avoid software patents. As far as I am concerned the software patent territory in the field in which we work is irredeemably tainted by the USPTO tendency to grant overlapping software patents on things that were clearly part of prior art. Also the USPTO is not especially good at understanding the fine details of further innovations in this area.
So even if we played the patent game, we would probably wind up getting our trade secrets 'blown' but be unlikely to get any real protection...
The obscurity and complexity of the system also mean that anyone who understands a problem well enough to write, or assist with preparation of a patent, has to understand the solution well enough to be FAR more useful doing more innovation, not trying to lock up what they've done 6 months ago.
The last major subsystem we considered patenting (under former management) was a string matcher that we completely removed a couple months ago, having entirely superseded it with something that didn't share any ideas with it. :-) Good thing we didn't spend a lot of money on patent attorneys.
Whilst software patents are excluded from patentability in NZ, patents for "embedded software" will likely be allowed when the Bill is finally passed in Parliament (aka opqaue firmware drivers). The complicating factor is any US-NZ free trade agreement where US may regard this exclusion as a trade barrier (which is a bit wierd since they are still allowed to sell whatever software ... they just can't stop the NZ equivalent). There are also some odd quirks (likely to disappear with further reform). According to one contact, NZ has a local "novelty" provision. According to Shelston, "Local novelty is such an antiquated notion [based on assumption] to import a new technology, one literally had to jump on a ship, sail the seven seas and then offload it."
Local novelty by "use" in theory could be applied to SaaS. Segmented markets with differential pricing are difficult to enforce in F/OSS. However, it may be practical to split the use of innovative ideas could be applied to banking or education with a price different. Similar impact is via dual licensing, such as VTK where specific custom version might be developed for the medical or oil/gas sectors.
The interesting interections are the Anti-counterfeiting Trade Agreement currently (Oct 2010) being negotiated in Washington, Brussels and Tokyo. There are likely to be punitive measures for patent infringement which for software will be like juggling sub-crit nuclean material. The hope that big vendors keep their testorones in place and stick to defensive patenting doesn't seem to be borne out by what's happening in the smartphone space. If such legal strong-arming gets cross linked to any Free Trade Agreement, it won't matter if software patents are exclude in NZ as no such local development can ever be exported.
Never mind the trolls that think software patents are a good idea. The fact is, software was being written for applications and operating systems and everything else long before it was patented. That pretty much ends the argument over whether software patents are needed for innovation. Software patents are needed for lawyers to make money off the software industry, to which they contribute nothing yet seek to take profit.
anonymous one or two
@VanillaMozilla or jb
You said:
These businesses sustain themselves in part by products protected by patents.
You are assuming the consequent, right? That is, you are assuming that because the software is patented, for this reason it makes money. But that is what the argument is all about, right? In fact, the way software patents necessarily operate on the market, they don't make money, the prevent companies from losing money (to lawsuits through software patent Mutually Assured Destruction)
The way you commented, you assumed one conclusion to the argument was true. That's assuming the consequent- importing the conclusion to be shown as a result of an argument into the argument as an assumption.
This is not the worst thing that could happen. What do we care if NZ becomes a software innovation paradise relative to other countries?