Red Hat Makes its Position Patent


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.