What Shall We Do About Software Patents?

December 10, 2008

Posted by: Glyn Moody

One of the central issues facing free software around the world is what can be done about the threat of software patents.

These are fundamentally incompatible with free software, since patents are about enclosing the intellectual commons – giving ideas an owner - and free software is about expanding it for all to enjoy by sharing ideas. But the particular challenges are quite different in different jurisdictions.

For Europe, the situation is quite clear: software cannot be patented “as such”. Or perhaps I should say *ought* to be quite clear, but the intellectual monopolists have been fretting at the edges of this clear mandate against software patents thanks to the addition of those weasel words “as such” in the relevant definition.

The fact that these are meaningless is proved by the never-ending series of clarifications, explanations, glosses, exegeses and goodness knows what that seek to reveal the mystery at the heart of those two little words, and of its evil sibling, “technical contribution”.

Here's the latest of them, from the UK's horribly-named “Intellectual Property Office”:

The Symbian judgment (especially paragraphs 54-56) provides an insight into what constitutes a technical contribution; in other words, a contribution that is more than solely a computer program. An important factor is what the program does as a matter of practical reality.

That is, it tries to determine what the phrase “technical contribution” means to the great “as such” question by invoking “practical reality.” Sigh.

Since the attempt to bring in software patents through the front door failed a few years back, thanks to a stunning defeat in the European Parliament, intellectual monopolists and their apologists have decided to try the back door, calling for a Europe-wide patent system.

The idea here is the usual ratchet approach beloved of the copyright crowd: for the sake of “harmonisation”, every country will be forced to accept the national regime that is most favourable to software patents.

The reason Europe absolutely must have harmonised patent rules is explained in a new report from the Association for Competitive Technology (ACT). According to its Web site:

“ACT is the only organization focused on the needs of small business innovators from around the world. We advocate for an environment that inspires and rewards innovation, and help our members leverage their intellectual assets to raise capital, create jobs and continue innovating.”

Those with good memories and a fine ear will note the harping on the “innovation” note, one of Microsoft's favourite tunes (making it obey the laws would be bad for “innovation”, seemed to be one of its favourite laments). And what do we find, but that among the “small business innovators” that are members of the ACT, there is Microsoft – that well-known teensy-weeny business.

The reason Europe would be mad to forgo the joys of the ratchet according to the study is very simple:

"For the EU to even consider catching up with the US and Japan, a single IP-protection must be put in place," the study states, mirroring industry's views.”

The ACT seems to think that the patent system works so well in the US, that Europe absolutely must ditch its own quaintly fragmented approach, and adopt a nicely unified one closer to the Stateside model.

Pity, then, that books like Patent Failure provide hundreds of pages of incontrovertible evidence that the patent system there actually costs more money – in terms of litigation – than it generates for patent holders, with the possible exception of the pharmaceutical industry (and we all know what paragons they are, especially in their licensing terms to developing countries.)

So in Europe, the main emphasis is not so much fighting software patents, as keeping them out by countering blatant lobbying efforts by organisations such as the ACT. But in the US, the insanity that is rampant patentability has taken such a hold that it will take a supreme effort – by the Supreme Court, no less – to get rid of that particular rottenness in the state of Denmark.

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