Why software – in particular embedded software – should not be patented

The promoters of software patents have often recourse to the case of embedded software to try to justify them. Because physical machines that embed software have both physical and information components, they conclude that the principles of both should be equally patented. I have produced various analysis to demonstrate that it is not the case, but none is as compelling as the example described by John Sulston in the book he wrote with Georgina Ferry, titled The Common Thread: Science, politics, ethics and the Human Genome (NAS, Bantam Press, 2002). John Sulston was the head of the Sanger Centre, and is a joint winner of the Nobel Prize for Medicine. Let’s first read what he has to say about events that occurred around 1990 when his group was occupied with sequencing the nematode worm’s genome:

Once the first fluorescence sequencing machines arrived, it became clear that we had to take control of the software. The machines worked well, but ABI wanted to keep control of the data analysis end by forcing their customers to use their proprietary software. In order to finish a sequence properly in the way I described above, you must have easy access to the raw data in order to evaluate their quality from point to point. A good way of displaying the readout from the gel is as a set of coloured traces on the screen. ABI’s software produced a display, but not in the form that we could combine flexibly with Rodger Staden’s assembly programmes. It was inconvenient to use and slowed us down. I could not accept that we should be dependent on a commercial company for the handling and assembly of the data we were producing. The company even had ambition to take control of the analysis of the sequence, which was ridiculous. I had a complete obsession of getting data out – I saw that as the bottleneck. There was an awful lot of people out there theorizing about genomes, so for the moment I did not see that as our job. The best way to drive the science was to get the sequencing machines going, cheaper and faster, and get the data out so that all the theoretists in the world would work on the interpretation.

So, one hot summer Sunday afternoon, I sat on the lawn at home with printouts spread all around me and decrypted the ABI file that stored the trace data. I don’t think it was deliberately encrypted; it was just constructed in a rather Christmas tree fashion, which I needed to track from one point to another. I came in on Monday morning and said, ‘Look, this is how we get the file data’. Within a very few days, Rodger and his group had written display software that showed the traces – and there we were. The St Louis team joined in, and they all went to decrypt more of the ABI files, so that we had complete freedom to design our own display and analysis systems. It transformed our productivity. Previously we’d only been able to get the traces as printouts, which we bound together in fat notebooks, infuriating to fast workers such as Rick Wilson.

You’d sit down at the computer, and youy’d have to flip through this stupid notebook, until you found the trace that you wanted. And hopefully it would be in the right direction. The great idea was to figure out a way to get this on line, but ABI would not help us out. So sat down and cracked it. That was a huge advance, really an important development. If we hadn’t done that we’d had have been way, way behind on the worm project.

ABI was not at all happy that we had done this. We had been negotiating towards the idea that they would sell us a key that would unlock the files, but it was clear that even then they woudl always have control and they would take it away again. There remained a real risk that they would re-encrypt the file in a way we could not get at; so we made sure that their other customers were aware of what was going on, and they did agree quite quickly to keep their formats public. We went on to become one of their biggest customers. I think I was the first to decrypt the files, but I’m not certain – there were others doing it at about the same time. I certainly feel that between us we did push ABI back a bit and denied to them complete control of this downstream software. It was the first experience of the kind of battle for control of information that I seem to have been fighting with commercial companies ever since: a foretaste of the much larger battles that would later surround the human genome.

I don’t want to add much to this quote: it speaks for itself. It tells you why the vendors of machines with some software embedded in them want to be able to patent it, and why they should never get it. It tells you why, in the context of software and information, the search for interoperability should always be exempted from being an infringement of patents (even for hardware patents). It tells you why such exemptions, though necessary, are are not sufficient if you allow the principles of software and information to be patented (in which case the machine vendor will always be in a position to claim infringement by saying writing operating software went beyond the search for interoperability). And it tells you that after you refuse this abusive monopoly, the companies will still do OK, but in a normal realm of control. Finally, it enables you to dream about a world where the freedom of software and information will be the rule and not the exception, where futur Nobel prize winners will be able to make advances in science without having to hack proprietary software. Thanks Mr. Sulston!

Aucun commentaire

Laisser un commentaire

Votre courriel ne sera jamais rendu public.Les champs marqués d'un astérisque (*) sont obligatoires