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

It’s not because the patent examiners are stupid, it’s because they’re following a system, and the system has rules, and the rules lead to this result.

You see, if somebody has made a machine that does something once, and somebody else designs a machine that will do the same thing, but N times, for us that’s a for-loop, but for the Patent Office that’s an invention. If there are machines that can do A, and there are machines that can do B, and somebody designs a machine that can do A or B, for us that’s an if-then-else statement, but for the Patent Office that’s an invention. So they have very low standards, and they follow those standards; and the result is patents that look absurd and trivial to us. Whether they’re legally valid I can’t say. But every programmer who sees them laughs.

In any case, I was unable to suggest anything he could do to help himself, and he had to shut down his business. But most patent holders will offer you a license. It’s likely to be rather expensive.

But there are some software developers that find it particularly easy to get licenses, most of the time. Those are the megacorporations. In any field the megacorporations generally own about half the patents, and they cross-license each other, and they can make anybody else cross-license if he’s really producing anything. The result is that they end up painlessly with licenses for almost all the patents.

IBM wrote an article in its house magazine, Think magazine—I think it’s issue 5, 1990—about the benefit IBM got from its almost 9,000 US patents at the time (now it’s up to 45,000 or more). They said that one of the benefits was that they collected money, but the main benefit, which they said was perhaps an order of magnitude greater, was “getting access to the patents of others,” namely cross-licensing.

What this means is since IBM, with so many patents, can make almost everybody give them a cross-license, IBM avoids almost all the grief that the patent system would have inflicted on anybody else. So that’s why IBM wants software patents. That’s why the megacorporations in general want software patents, because they know that by cross-licensing, they will have a sort of exclusive club on top of a mountain peak. And all the rest of us will be down here, and there’s no way we can get up there. You know, if you’re a genius, you might start up a small company and get some patents, but you’ll never get into IBM’s league, no matter what you do.

Now a lot of companies tell their employees, “Get us patents so we can defend ourselves” and they mean, “use them to try to get cross-licensing,” but it just doesn’t work well. It’s not an effective strategy if you’ve got a small number of patents.

Suppose you’ve got three patents. One points there, one points there, and one points there, and somebody over there points a patent at you. Well, your three patents don’t help you at all, because none of them points at him. On the other hand, sooner or later, somebody in the company is going to notice that this patent is actually pointing at some people, and [the company] could threaten them and squeeze money out of them—never mind that those people didn’t attack this company.

So if your employer says to you, “We need some patents to defend ourselves, so help us get patents,” I recommend this response:

Boss, I trust you and I’m sure you would only use those patents to defend the company if it’s attacked. But I don’t know who’s going to be the CEO of this company in five years. For all I know, it might get acquired by Microsoft. So I really can’t trust the company’s word to only use these patents for defense unless I get it in writing. Please put it in writing that any patents I provide for the company will only be used for self-defense and collective security, and not for repression, and then I’ll be able to get patents for the company with a clean conscience.

It would be most interesting to raise this not just in private with your boss, but also on the company’s discussion list.

The other thing that could happen is that the company could fail and its assets could be auctioned off, including the patents; and the patents will be bought by someone who means to use them to do something nasty.