A Patent No-brainer, Mr Willetts

There has been understandable excitement over David Cameron's announcement - out of the blue - that the UK government would be looking at copyright law: The founders of Google have said they could never have started their company in...

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There has been understandable excitement over David Cameron's announcement - out of the blue – that the UK government would be looking at copyright law:

The founders of Google have said they could never have started their company in Britain.

The service they provide depends on taking a snapshot of all the content on the internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States.

Over there, they have what are called ‘fair-use' provisions, which some people believe gives companies more breathing space to create new products and services.

So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age.

I want to encourage the sort of creative innovation that exists in America.

Much as I'd like to get excited about the prospect of making UK laws "fit for the internet age", there are a number of problems here.

Simply switching from our current "fair dealing" system to one modelled on the "fair use" approach found in the US probably wouldn't be a good idea, as Jordan Hatcher points out:

while the fair use test offers a high degree of flexibility around emerging technology and practice, the "little people" (consumers, startups, and so on) can often lose out on this model because it sets up a game they can't play – expensive copyright litigation. Still the advantages of fair use are such that I do think it's very worth it to introduce it here in the UK, and it's flexibility is critical to giving startups some protection to enable business models.

One of the great things about fair dealing in the UK, is that it does set out some pretty clear and reasonably specific exceptions.

That's why if we introduce fair use to the UK, I say we should do it alongside our existing fair dealing provisions, and not instead of them.

Also problematic is this general idea of asking large US companies for their views on the best way to do tech stuff on this side of the pond. It's not a question that can really be answered simply; and when it is answered, it is usually wrong, as Charles Arthur rightly notes:

But ministers and prime ministers are in thrall to those who would sell them technology. Bill Gates of Microsoft told Tony Blair's No 10 that computerising health records isn't really that difficult; Microsoft's already computerised loads of stuff, so what's the hassle? Billions of pounds later, we're still no closer to it happening.

So, all in all, I don't really regard this as something we should view too optimistically: if anything major comes out of it, it may just make things worse.

But if there are some doubts about the wisdom of following the US example on copyright, there can be absolutely none about the utter insanity of doing so in another realm: that of software patents. And yet, unbelievably, that seems to be actively considered:

David Willetts, the science and universities minister, said before Cameron's speech that he would investigate making it easier to obtain software patents. "In the US, it's easier to obtain software patents, and Google was able to patent some work – using a federal grant, I might add – that it might not have been able to patent in the UK. The US rule is that ‘anything man has invented under the sun you should be able to patent'. That's something we do wish to investigate."

For a start, this completely misrepresents Google's situation, which has been to patent very little compared to Microsoft, say. Google is actually a good example of a US company that has not resorted to software patents in an attempt to obtain a monopoly on a field and lock out rivals, but has used its ideas to do a better job and win that way – exactly how competition is supposed to work. We can only assume that somebody has bent Willetts' ear, and in completely the wrong direction, with either an erroneous or deliberately misleading version of the facts.

After all, it's easy to see the baleful effects of the software patent system in the US. For example, you have the growing patent thicket that is burgeoning in the smartphone market, with just about everyone suing everyone else. The end-result will be to create a cartel (aka patent pool) that everyone must join if they want to operate in this market. This will hinder innovation by raising the barrier to entry for newcomers – exactly the opposite of what the UK government wants to achieve.

Indeed, in general software patents favour the incumbent – not least because the latter have already patented all the obvious ideas in a given sector. Since this will tend to act against startups, all those hoped-for new companies in the east of London will be hugely disadvantaged if software patents are strengthened in the UK.

But more generally, introducing software patents would actually be a drag on the entire UK tech economy. As the excellent book "Patent Failure" by James Bessen and Michael Meurer (Princeton University Press, 2008) has shown through meticulous calculations (and by authors that are in favour of patents, not against them) the aggregate annual patent profits (not just licensing fees, but all profits) for software in the US were $100 million for the years 1996-9; the aggregate litigation costs for the same period were $3,880 million. That is, software patents cause a net loss for the software industry. Introducing them into the UK would simply take money away from the very group that the government seeks to support.

At every level, then, not introducing software patents into this country should be a no-brainer; let's hope that the minster who has been dubbed "Two brains" Willett sees it that way when he looks into the subject more deeply. If he doesn't, the current moves to help tech startups in this country will do precisely the opposite.

Follow me @glynmoody on Twitter or identi.ca.

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