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Software patents and mental health

or, why you should not kill yourself for using a computer

Every so often we read news that a “patent troll” has somehow obtained a “trivial patent” that makes it “illegal” to use basic maths that practically all computing depends on. For example:

Claim 1 of US patent 5,893,120 arguably meant any computer made since ~1985 shouldn’t have been used between 1997 and 2017;
Claim 1 of US patent 7,028,023 B2 arguably means any C++ program that uses std::deque (i.e. many programs from the 1990s onwards) shouldn’t have been used between 2002 and 2022;
Claim 1 of US patents 7,047,033 B2 and 7,920,894 arguably meant disabled people with Wi-Fi connections shouldn’t have used some of my web accessibility software between 2000 and 2020 even though I got there first.

Being told it’s illegal to use a computer is especially hard-hitting for those who depend on computers to overcome a disability. Believing you are a criminal can produce extremely negative emotions (many religions say crime slaps God himself, and many non-religious people are also affected); guilt feelings can even result in suicide (although they shouldn’t). Perhaps this “reality check” can help:

Patent law is not criminal law.

Patent infringers are not criminals, they just might owe money. The wording that patent law uses doesn’t help: we might associate “damage” with vandalism, “infringement” with intrusion, “unlicensed” with illegal driving, and “right” with human rights, but in patent law these words are merely about who owes whom how much. It’s not the same as copyright law.

They have to bill you first.

You don’t have to spend sleepless nights checking every nook and cranny of your computer to see if you’ve accidentally done 2+2=4 in a way you’re not supposed to. True, a patent on this would say you “can’t” do it without permission, but this “can’t” is a civil “can’t”, backed up by a law that is basically about resolving disputes, which means you won’t even owe anything until they actually dispute—*with you*, not with BigCorp Inc. Even if BigCorp made a poor defense and lost, *you* still can’t owe anything until they come after *you* (and the patent might be overturned before they get that far). Meanwhile, you’re not obligated to take the initiative to check your maths for what they might want to know. It’s not the same as tax law.

You can’t owe more than you’ve got.

If the worst comes to the worst and a court orders you to pay all the money in the world as a punishment for your 2+2, then bankruptcy is a legal provision you can take, and you can take it in good conscience as your debt was not brought about by any gross negligence on your part. (Note the word “gross”—no human can be expected to have *absolute zero* negligence, as that would need absolute perfection.) Bankruptcy usually lets you keep certain minimal assets and then get on with your life; the rest of the debt is cancelled (although there’s usually a transitory period during which your income is capped). As you can do that in good conscience, you won’t have to feel guilty about it afterwards, so you don’t have to live in fear of such guilt now.

If you *own* your home rather than renting it, then bankruptcy can be more complicated because they typically take that away and leave you homeless, unless you have found some affordable rental accommodation to move into before the bankruptcy takes effect (there’s usually a law that they must leave you enough to continue an existing tenancy). You won’t be eligible for social housing while you still own property, so you might need to move to an area where private rents are cheaper.

You’re not criminalising others.

If you’ve written a program and given it to a friend, and you’ve done your 2+2=4 in the ‘wrong’ way, that might increase the chances of the “patent troll” going after *them*, and this prospect might make you feel guilty of “setting them up” (even though they’re probably infringing *anyway* if the patent is that trivial). But remember you’re not making your friend a criminal; at worst, you’re slightly increasing their risk of trouble. You might also have given them a common cold, or said something upsetting, or kept them talking for just long enough to make them miss a bus that’s about to be blown up by terrorists (I know someone who had that experience in London 2005), or indeed given them a useful program whose benefits outweigh the risks. Some risks are “low enough”—as Musa points out in *Software Reliability Engineering*, most people are happy to use the road system and wouldn’t think twice about encouraging others to use it when necessary despite the risk of crash.

Some countries do criminalise, but only serious cases

Apparently Switzerland (and maybe Germany) have criminal laws in effect as of 2011, but the infringement must be deliberate and non-trivial; criminal courts tend to have higher standards than civil courts.

Reports in 2013 suggest some countries can prevent foreign citizens from returning home while a civil case (such as patent infringement) is in progress, and that anyone who doesn’t like you can simply file a suit and use their “connections” to make it last as long as possible, preventing you from returning to your family for years even if the case is eventually decided in your favour. (I’m not sure what would happen if you *also* do something that results in your being ordered to leave that country, so that one court order tells you to stay while another tells you to leave. I suppose it would then be a question of who has the greater authority.) But rest assured that in countries like these there are probably dozens of ways for people who don’t like you to make trouble, and the fact that one of them involves patents is a minor detail that’s hardly worth any additional worry over and above that of going there in itself.

What if a country criminalises the infringement of trivial patents?

Then perhaps anyone could go to jail at random, but that’s still no reason to *feel* guilty because overstepping an unknown or extremely unclear regulation can hardly be described as “taking a stand against” law or justice. Governments might legislate the amount of diligence required; if all citizens must check through millions of patents before using *any* tool or technique then this would jeopardise practically everyone’s survival (because it would effectively say “stand still and don’t move even if life is in danger”), so it could sometimes be overridden by the Nuremberg trials’ ruling that a country’s laws should not be placed above “a higher natural law of justice”, although conscientious citizens would still follow it *to the extent possible under that “higher law”*. This is a hypothetical situation if patent law is not criminal where you live and/or there is no legislation requiring excessive diligence.

You could also say that “obey the law” is actually a shorthand for “do as the authorities ask”, which means we don’t have to obey any still-standing archery-practice law from 1515 because modern authorities would not ask for that. If for some bizarre reason they suddenly decide to throw you into jail on a technical point alone, that shouldn’t make you a “real” criminal. (The UK’s compulsory archery laws were repealed by the 1863 Statute Law Revision Act, but not everyone knows this. There might be other long-forgotten laws that *haven’t* been repealed, so the distinction between “law” and “authorities” still stands: it’s not necessary for everyone to read, study and obey every law that has ever gone onto the books since antiquity.)

Conclusion

If flaws in the system allow trivial patents to exist, then the chances are we’re *all* using those patents, so “patent trolls” can use civil law to litigate *anybody*, just as criminals can use physical law to assault anybody. Therefore, feeling guilty about being open to trivial lawsuits might be likened to feeling guilty about being vulnerable to criminal attack—while reasonable precautions are sometimes advisable, it’s not a crime to fail to provide absolute protection, which is humanly unattainable.

What about getting your own patent?

From time to time people have said to me about something I’ve done, “you should have patented that idea”. They seem to think I could have made a lot of money (at the expense of large companies that wouldn’t even notice) and I could have donated this to good causes, or lived on it while increasing my voluntary work, or something.

I’m sorry but I cannot recommend this method. Quite apart from moral arguments (even if I *could* choose guaranteed morally-acceptable ‘targets’ for exploitation, might my patent have a “chilling effect” on others? Would disadvantaged people who *need* my work have to wait while I go through a lengthy application process? etc), it’s not even clear it would work as an investment. In 2017 figures:

About 10,000 US dollars are required to take out a patent (more if you want international protection),
and about 98% of patents are never used (95% if we limit ourselves to patents that a university has seen fit to endorse).

Those figures suggest a rich investor could spend a million dollars registering 100 patents and have an 87% chance of *some* profitability (and even then it’s not clear they’d get the full million back), but a lone inventor would be ill-advised to sink a large part of their personal savings into one patent with only 2% odds and a guaranteed 100% loss if nothing happens.

I’m surprised the popular misconception of “lone inventor files one patent and a fortune rolls in” wasn’t destroyed by the 2008 film *Flash of Genius*—I can’t vouch for the accuracy or otherwise of its portrayal of Robert Kearns fighting for over a decade, destroying his family relationships in the process, before the big players would recognise his patent, but I’d have thought viewers might at least come away with the idea that you *can’t* expect riches just because you “have a patent”, at least not unless you can dedicate *years* of your life into chasing it up—and even then it might not work out.

While I’m not qualified to give investment advice, in general it seems patenting your idea is *probably not* the best use of your personal savings. And you don’t need a patent just to prove an idea was yours—a provably-dated publication should be sufficient for that.

A less common misconception is that something needs to be patented before anyone will dare to use it. While biochemist Howard Schachman did write in 2006 that drug companies of the 1960s/70s were unwilling to manufacture public-domain products they couldn’t protect, the situation with software is clearly different—many ‘unprotected’ contributions have been *widely* used.

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All material © Silas S. Brown unless otherwise stated. Wi-Fi is a trademark of the Wi-Fi Alliance. Any other trademarks I mentioned without realising are trademarks of their respective holders.