Category Archives: Patents

First reports of a victory against software patents in the EU

Early reports are coming in that those fighting the introduction of software patents have won a significant victory this-evening. Its complicated, but basically the European Parliament committee (JURI) with responsibility for this Directive has voted to start again from scratch, rather than to press on with the current pro-patent text. This should give the EU sufficient time to consider the issue carefully, rather than rushing through a law that would have led to the introduction of software patents.If the EU can send a clear message against the patentability of software, then this should hopefully boost efforts in the United States to fight software patents there.Read more.

What is wrong with software patents?

The European Union is attempting to pass a Directive that will force many European governments to permit patents on software despite growing protests from software engineers and small European software companies. Opponents fear that software patents will stifle innovation and competition in their industry, increasing their legal costs, while leaving them at the mercy of large companies who have the resources to acquire large numbers of patents. The Directive is supported by trade groups dominated by large multinational software companies, along with national patent offices who generate revenue from patent applications.A patent is a fearsome weapon, not only does it prevent someone from copying an invention, it also prevents them from independently inventing the same thing. This means that you could spend your entire life sitting in a cave, with no contact with the outside world, and anything you invent could still infringe other people’s patents. In contrast, a copyright only prevents other people from copying your work. If you copyright a poem and someone else, by chance, happens to write the same poem without copying yours, then they are not infringing your copyright.The purpose of patents, indeed all forms of intellectual property, is to promote the arts and sciences. Patents achieve this by granting an inventor exclusive control over their invention for a limited time. In return, the inventor is required to disclose their invention so that after the limited time expires, it is freely available to the rest of society. Society benefits when this provides an incentive for inventors to invent, where otherwise they might not have bothered.A patent isn’t just granted on an idea for an invention, it can only be granted once you have a prototype, or at least the ability to teach someone how to build a prototype, this is known as a “teachable invention”. Patents therefore motivate an inventor to take their idea and invest the time and money to develop it into a teachable invention. In return for this, and a small fee, inventors are granted a 20 year monopoly over their invention.This monopoly is not granted without a price. Every invention builds on those that came before, yet for the duration of a patent nobody else can build on a patented invention without the permission of the inventor. This creates a cost for society, and other inventors. Patents work when the benefit to society of having the invention outweighs the cost of the inventor’s monopoly over it.In a field such as pharmaceuticals, a vast investment may be required to get from an idea for a new drug, to the drug itself. In this case, it is easy to see how a patent on this drug will benefit society if it provides sufficient motivation to the drug’s inventor to make the investment required to invent it.Software, however, is very different. Getting from an idea to a prototype in software requires very little investment and risk. This is the great strength of software. Its why Bill Gates, a college drop-out, could build a multi-billion dollar company out of nothing but the ideas in his head. Its why Linus Torvalds could later sow the seeds of an operating system built by volunteers that would challenge that multi-billion dollar company.Patents should not apply to software for the simple reason that they would do far more harm than good, harming creativity rather than promoting it. Software doesn’t need patents, copyright is more than adequate to provide the incentive software engineers need to turn their ideas into software. The cost to society of a 20 year monopoly over a software invention will never be justified, because it is inconceivable that any software invention could require such a powerful incentive. The price for this monopoly is paid by other inventors, and so the effect is to stifle innovation, not to promote it.Unfortunately software is not the only field where patents do more harm than good. Those advocating software patents often ask “Why should software creators be denied patent protection, while those in other fields are not?”. This begs the question. When patents do more harm than good, as they do in software, patents do not afford protection, rather for most software creators they are a threat. One should therefore ask “Why must software creators endure patents just because those in other fields do?”.

More IP lawyer double-think

I just wrote a response to an article in what I believe to be a trade magazine for IP lawyers. Probably a waste of energy, but it was nice to get it off my chest 😉

Dear Mr Wild,I write in response to Craig Opperman’s article on software patents in Issue 9, available online at: addition to the variously discredited, contradictory, and ad hominem arguments put forth by those that would impose software patents on European innovators, we are now asked to swallow yet another.According to Mr Opperman, it doesn’t matter whether EU lawmakers prohibit software patents because IP lawyers will find a way to work around any restrictions, so they shouldn’t even try. In doing so it appears he would concede his lack of respect for the law as written by our elected representatives.Aside from its undemocratic implications, the practical problem with this argument is that while the “astute IP strategist” may well find ways to fool patent offices into granting invalid patents, those patents will not survive long as soon as they are challenged in court. This, presumably, is the reason that most holders of illegally granted software patents in Europe have avoided litigation lest their “IP assets” receive such scrutiny.In fact, any “astute IP strategist” that encourages their client to go through the expense of obtaining a patent in the knowledge that, if granted, would be unlikely to survive a court challenge should be reported to the law society for professional misconduct.Yours Sincerely,Ian Clarke.

Also see Prof. Lenz’ response.

A wonderful idea

Since intellectual property lawyers are so keen to extend patentabilty to almost everything they can think of, I have a suggestion they are sure to love:We extend patentability to constructs used in legal contracts! Why shouldn’t the hard work of lawyers be protected by patents? Why should someone be able to get a patent on a vacuum cleaner or a sorting algorithm, but not on a nifty new way to write mutual non-disclosure agreements?! All of that innovation out there being pirated left right and center – its a tragedy. In fact, I fear for innovation in the legal profession if we don’t extend patentability to legal contracts.Obviously these patents must be expressed in a standardised XML-based language which can only be drawn up by highly qualified software engineers. Of course, in the event of any conflict software engineers must also be called upon to sort out any disagreements (commanding premium hourly rates for their services of course!).Lastly, instead of the patent office (which, being full of lawyers, lacks the skills to properly evaluate these patents), such patents are awarded by the Electronic Frontiers Foundation, who get paid $10,000 per patent.Wow, all of this is such a good idea, I should probably patent it!

Lawyer: World’s best known software engineer doesn’t understand software

This crap really makes my blood boil: According to the Inquirer, UK Patent Lawyer John Collins has “lambasted” Linus Torvalds along with anyone else that dares to oppose the introduction of Software Patents in the EU. What a surprise that someone who stands to make vast quantities of money off the carnage that software patents will cause (and have caused elsewhere) would support their introduction!Collins said: “Torvalds and his supporters lack a fundamental understanding of intellectual property rights as they seem to be unaware that copyright can only protect software code and not software”. So now “software code” isn’t “software”? You really gotta love the lawyer double-think here. Can anyone believe the gall of some lawyer lecturing one of the world’s best known software engineers on what does and does not constitute software?He went on to say: “The original proposal was solely designed to clarify and unify existing practice in the EU. However the current version – as a result of amendments made by the European Parliament – will result in patent holders in certain areas losing a significant element of protection meaning that some existing patents will become worthless”. What he doesn’t say is that the patents to which he is referring were illegally granted by patent offices against the terms of the European Patent Convention, and are therefore worthless anyway. All the European Parliament’s amendments do are to reassert existing law. It is Collins that seeks to change the law, not us.This is yet another example of the disingenuous arguments made by those, like Collins, that must be positively salivating at the prospect of using software patents to milk innovators for every penny they are worth. For all our sakes, I hope they don’t succeed.

FT: MEPs warned on implications of EU software moves

Not a good article for the anti-swpat movement in the Financial Times today :-/It briefly conveys our concerns, but is dominated by advocates of software patents, who repeat their claim that the Council text, which removed the European Parliament’s safeguards to allow software patents, will not permit patents on pure software, but is necessary to allow patents on software which make a “technical contribution”. They use helping a mobile phone save battery power or improving the picture of a television screen as examples of this, but fail to point out that this term remains undefined and could mean almost anything, including what most would think of as pure software.It claims that the European Parliament version of the Directive, which blocked software patents, will “remove” patent protection from the 30,000 software patents currently in existence, but fails to point out that they don’t have patent protection right now anyway, the EP merely preserves the status quo.It takes for granted that the voices in favour of software patents are representative of the European tech industry, even though the EICTA is dominated by large US corporations, it shouldn’t be surprising that they would welcome a law that would allow them to stifle their smaller EU competitors (I don’t have a EU-wide statistic, but I believe that in Germany )It also repeats the easily refuted myth that the EP version will make the EU a “copycat paradise” (we haven’t allowed software patents in the past and I would hardly describe the EU as a copycat paradise, I don’t see why this would change if software patents aren’t introduced).Either way, you have to hand it to them, the EICTA has been very successful in getting some mainstream newspapers to reprint their propaganda, and it hasn’t gone unnoticed by the patent arms dealers either. Just when I was really starting to get optomistic about this too :-/Update: Not all bad news today, apparently its now official – Poland does not support the Council version of the Directive which means that it no-longer has the support of a qualified majority in the Council and cannot be adopted. This creates an additional hurdle to the introduction of software patents in Europe. See the FFII press release.

Patents directive “falling apart”

According to Brussels lobbying company BKSH, the software patents directive is falling apart due to “a shift” in the positions of Poland, Hungary, Germany and the Netherlands. Their press release repeats the myth that the directive won’t allow patents on pure software.If the directive does fall apart, while a better outcome than the directive passing in its current form, it would leave open the possibility that the pro-patent forces will try to legalise software patents in Europe through other means. It would be better to pass a directive that explicitly banned patents on pure software while achieving the stated goal of the original directive of harmonising the EUs patent systems.Of course, it seems the real motivation of proponents of this directive was to unleash software patents on Europe under the guise of harmonisation. Thwarted in this goal, they would probably prefer no directive. This would reveal the truth – that they couldn’t give a damn about patent harmonisation if it doesn’t legalise patents on software.

Sun caves in to Kodak

According to a rather alarmist article in ZDNet, Sun caved in to Kodak with a financial settlement and a cross-licensing deal. The author of the article claims this is a disaster for software developers, but it isn’t the first time a company has caved in to a patent, and it won’t be the last.I still haven’t got a clear idea of what exactly these patents cover, although it sounds like something related to remote method invocation.Right now my main hope is that the EU will reject software patents, thus placing pressure on the US to change. Unfortunately, it is difficult to see the US ditching software patents due to internal pressure alone :-/