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Infringement is unavoidable and clearance is impossible

Avoiding software patents is difficult or impossible, as are patent clearance or freedom-to-operate searches, because:

  1. There are so many software patents
  2. Computer programs easily contain tens or hundreds of thousands of ideas
  3. The language for describing computer functionality is abstract and arbitrary

Even a company with a legal team as large as Microsoft's (and with as many software patents) cannot avoid patent infringement. See Microsoft's patent infringements.

Searching for patents in order to avoid infringement is impossible in practice, partly because of the sheer number of them, and partly because there is no standardisation of the (necessarily abstract) vocabulary that is used. A system in which "components" send "messages" to each other can be technically identical to one in which "agents" transmit "documents".


See for example A tale of two patents:

In an environment like today's technology industry, "There's a high likelihood that people are applying for patents, these patents are being granted, and there's a high potential for overlap," said David Bohrer, a partner in the IP litigation group of Dechert LLP. "It's very difficult both for the U.S. government examiner and for a potential infringer to discover [relevant patents]."

In the same vein, World Wide Web Inventor Warns Of Patent Licensing Royalty Threat:

All companies developing emerging technology are threatened by the prospect of patent licensing royalties, Berners-Lee said. "You could never find out what patent could possibly apply to what technology," he said. "You could never guess what things people might have the gall to say they have patented already. It really is a universal fear."
(quoting Tim Berners)

It doesn't help that the language in which software patents is written is incomprehensible even to a skilled professional software engineer. Where else does one ever come across a "plurality"? And what exactly does it mean, in programmers' language: zero or more, one or more, or two or more?

Not only is infringement unavoidable, it is also theoretically undecidable. In computer science there is no objective way of deciding whether two programs are equivalent, and therefore whether one program violates a claim made on behalf of the other. As Richard Stallman puts it:[1]

GIF is actually covered by two patents: both covering the LZW data compression algorithm that was patented twice. Now, that's not supposed to happen but it does, and the reason it happens is that the two patents are not written in the same way. You have to look at them and think about them carefully to see that they are both covering the same computation. Now if they were patents on some kind of chemical process you could say, you could have a quick way to see if you need to think about them, because you could ask yourself "are the same chemicals going in, are the same chemicals coming out? Hmm, if they are the same I guess I'd better compare these". But there's nothing like that to help you comparing these two patents on different ways of describing the same mathematics. Fact is, you could describe the same mathematics in ways that don't look exactly the same at first sight. Only when you think about them do you see it's the same mathematics. And the patent office doesn't have time. I'm not going to say that some patent examiner did this because he was stupid - the fact is they have only 17 hours per patent application, and they don't have time to take this application and every other application and spend a lot of time comparing them.

Programs can use thousands of ideas

David Martin, patent risk expert:

"If you're selling online, at the most recent count there are 4,319 patents you could be violating," said David E. Martin, chief executive of M-Cam Inc., an Arlington, Va.-based risk-management firm specializing in patents. "If you also planned to advertise, receive payments for or plan shipments of your goods, you would need to be concerned about approximately 11,000."[2]

Google's chief legal officer, David Drummond, says that a smart phone "might involve as many as 250,000 (largely questionable) patent claims".[3]

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Why abolish software patents
Why abolish software patents Why focus only on software · Why software is different · Software patent quality worse than all other fields · Harm caused by all types of patents
Legal arguments Software is math · Software is too abstract · Software does not make a computer a new machine · Harming freedom of expression · Blocking useful freedoms
High costs Costly legal costs · Cost of the patent system to governments · Cost barrier to market entry · Cost of defending yourself against patent litigation
Impact on society Restricting freedom Harm without litigation or direct threats · Free software projects harmed by software patents · More than patent trolls · More than innovation · Slow process creates uncertainty
Preventing progress Software relies on incremental development · Software progress happens without patents · Reducing innovation and research · Software development is low risk · Reducing job security · Harming education · Harming standards and compatibility
Disrupting the economy Used for sabotage · Controlling entire markets · Breaking common software distribution models · Blocking competing software · Harming smaller businesses · Harming all types of businesses · A bubble waiting to burst
Problems of the legal system Problems in law Clogging up the legal system · Disclosure is useless · Software patents are unreadable · Publishing information is made dangerous · Twenty year protection is too long
Problems in litigation Patent trolls · Patent ambush · Invalid patents remain unchallenged · Infringement is unavoidable · Inequality between small and large patent holders