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Red Hat Makes its Position Patent
May 05, 2009
Posted by: Glyn Moody
Six months ago I noted that the European Patent Office had embarked upon a fairly abstruse process:
a referral of a “point of law” concerning software patents by the President of the European Patent Office (EPO) to the EPO “Enlarged Board of Appeal”, something that seems to happen quite rarely. Now, you do not have to be a genius to see the problem with this; essentially, the EPO is asking itself whether it wants to widen its own jurisdiction, increase its power and boost its income by allowing software patents. Unless the Enlarged Board of Appeal consists entirely of self-denying, altruistic masochists, I think we can all guess what the answer will be.
The comments period ended last week, and just before the deadline passed I was wrestling with the issue of whether I should send something in. As regular readers of this blog will know, I am not particularly shy and retiring when it comes to offering my opinions on matter dear to me, but on this occasion, I decided not to send anything.
My reasoning was that this was an extremely technical consideration of the issue of software patents, and that the people pondering the matter would not be interested in vague philosophical waffle about why software patents were a bad thing. They would be looking for keenly-argued, legalistic comments of the kind I was manifestly unable to provide.
Instead, I thought it better to leave this one to those better able to obtain some heavy legal advice on what should be written, and how. Among those doing precisely that, was Red Hat:
Today Red Hat took its efforts to confront the problem of software patents to new ground by filing a brief with the European Patent Office. The brief explains that software patents hinder software innovation, and that there is a sound legal basis not to expand availability of such patents in Europe.
Now, a little while back I wrote a piece called “A Question Red Hat Must Answer” - the question being where exactly it stood on software patents. Happily, this present submission to the EPO leaves us in no doubt. But it goes well beyond establishing Red Hat's bona fides: it presents one of the best introductions to why software patents are so harmful to free software.
It begins by presenting a short history of software patents:
The historical record of innovation in software shows that, both for open source and proprietary software, remarkable progress in the U.S. and Europe occurred prior to the time that software patents became generally available. Innovative open source software projects began to appear by the early 1980s.
At that time, software patents were relatively few in number and case law was interpreted to limit their availability. See Diamond v. Diehr, 450 U.S. 175, 185-86 (1981). By contrast, it was already settled that copyright law covered software. Thus the early innovators of open source software had no reason even to consider obtaining patents on their work, and in fact opposed software patents.
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Glyn Moody Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).
Comments received
Ian Jones said on Tuesday, 05 May 2009
Good news
Glyn Moody said on Tuesday, 05 May 2009
It is, and kudos to Red Hat for its submission.
James Dixon said on Tuesday, 05 May 2009
Great piece, Glynn.
I have submitted and been awarded several software patents.
The awkward thing about them is that since you cannot easy patent a business process you must describe the software patent in terms of physical things (storage and memory).
You cannot talk about the process very much in the patent. Software is ultimately just input->process->output. If you can't patent the process part, the whole thing is kinda silly.
Glyn Moody said on Tuesday, 05 May 2009
@James. That's part of the problem: the contortions that patent lawyers put applications through in order to somehow make them patentable. Given that software functioned well enough without them 20 years ago, when software companies were founded and people got rich, why bother?
Ryan said on Tuesday, 05 May 2009
Well as I thought the way that companies are using patents today really just make developing software just way too hard without stepping on too many toes. Just stifling the invention of development of new processes.
I am glad that Red Hat actually poses this to the patent system.
Glyn Moody said on Tuesday, 05 May 2009
@Ryan: but whether it actually does any good is another matter....
Jose_X said on Tuesday, 05 May 2009
This part from the press release was also good:
"In spite of the clear risks that the patent system poses, not only to FOSS but also to proprietary software, there are still strong supporters of software patents. There are occasional examples of software patents that result in large profits for the patent holders, but they are few. In this respect, the patent system is very like the lottery, where out of many players, a very small number win big. Most lottery players, and most patent players, start with dreams of vast riches, and only end up the poorer. Remarkably, despite the economic reality of consistent losses, some will not give up the game."
Glyn Moody said on Tuesday, 05 May 2009
@Jose_X: yes, the whole thing is well-written.
Jose_X said on Tuesday, 05 May 2009
I just finished the brief (pdf). What a great contribution! This is an early Christmas present. At least until the effect wears off, I feel like sense can actually rule (EU and US).
[The presentation gets to (what appears to be) the heart of both Bilski and EU law.]
With respect to Bilski (which appears to have said more than what I had thought it said), it's good to be able to win in the courts since that would cover all existing patents and can set up a bar that may not be so easy for Congress to jump over should they be tempted to re-instate software patents.
Sensible Red Hat also shows the folly of the reasoning being put forward by those trying to use weasel words to sneak software patents back into EU law.
Patent investments should go down the drain if reason rules. It's a dirty business. Taking down the software patent obstacle will help RHT as well as boost all open source companies. This would be a win for innovation and efficient world-wide collaboration.
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