Brazil Grapples with the Problem of Software Patents

Software patents have figured quite frequently on this blog, usually in terms of their deep problems, especially for free software. Although I've tended to write about what's happening in Europe and the US, the rest of the world is also...

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Software patents have figured quite frequently on this blog, usually in terms of their deep problems, especially for free software. Although I've tended to write about what's happening in Europe and the US, the rest of the world is also beginning to experience the same issues as computers enter ever-more deeply into daily life there, and is similarly seeking to come up with solutions.

For example, the Center for Strategic Studies and Debates, a research arm of Brazil's Chamber of Deputies, has just released a 360-page study [.pdf] on the subject (in English). It's extremely thorough, and has many fascinating sections on every aspect of patents, but of particular interest to readers of this blog will be the chapter dealing with software patents. As in the EU, various legal tricks have been employed to gain patents on even the most abstract basic programming methods.

Here's the report's excellent summary of the problems that arise when patents are granted on software:

The permission of software patenting in Brazil casts national software developing businesses into legal uncertainty, as each line of code developed in Brazil becomes subject to questioning over its origin and ownership. Any citizen or company, large or small, users of software, would be potential targets of legal battles, in case the computer software in use violates third-party patents. Foreseeing or avoiding patent infringement is nearly impossible, especially in cases involving closed source-codes for the computer software that are secret and private to the supplier.

The most grievous issue is that software patents block competition and innovation in the information technology sector, since, in order to make competing software's, different businesses work towards tackling the same issues and, frequently, come up with similar or equal solutions. And, as the patent bestows rights of functionality, it does not matter whether a software developed by a competing business has been done entirely independently: infringement happens anyhow, if the functionalities are identical or very similar – even if the software programs were developed independently.

Innovation in the software industry, for its specific features, works in a sequential and cumulative manner. Computer software programs are not static reactions: they suffer constant adaptations and improvements. This sequential innovation "builds up cumulatively over other inventions, unlike the airtight innovation limited to other products in many other areas". At the same time, and for the same reason, computer software programs are frequently written based on concepts and subroutines of other pre-existing software, including usability and accessibility for persons with disabilities. That is the nature of the construction of computer program algorithms. However, the institute of patents is not appropriate for the software sector, at the risk of stifling innovation in the information technology field.

I couldn't have put it better myself. Let's hope Brazil draws the obvious conclusion, and definitively bans all forms of software patents.

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