Thursday, February 24, 2005

YAWN! Software patents. Again.

This is actually a very intelligent and coherent analysis of the problem of software patents and software copyright, but it fails in many levels. I know that the author does not claim to make an European software analysis, but why criticise the problem of European software patents with an American copyright analysis? The problem with this is that the argument may be true in the United States, but software copyright is a much less complicated issue in Europe, where the ridiculous filtration and abstraction test has been rubbished by English judges, while Continental copyright law is perfectly applied to software all the time. Few can doubt that there is a problem with American copyright law and software, but this is not the case in Europe. Without this argument, the pro-patent lobby has almost nothing else left to offer, and explains why the directive has been so unpopular in Europe.

Another problem with the pro-patent argument is that its proponents want to have double protection for software, as it is quite clear that they still want copyright protection to be able to prevent piracy. Their argument is to continue with copyright protection where it serves them, but also to add patent protection so that they can prevent others from misappropriating their ideas. The problem with this is that these ideas tend to be extremely broad, and are often the result of already existing ones. The history of software development is nothing but a long history of people adapting one idea and using it in their own program. But the protection of software ideas has another problem, and it is that in software there are usually not many different non-obvious ways of performing an action and producing an effect. Text editors must all look and operate like they do because there are not many other ways of doing it. If you were able to obtain a patent on text editors, then you could have an exceptionally forceful advantage over every other potential text editor maker.

The article also wants to make a case about patent quality, but it fails to stress just how important this is. If patents are being issued for obvious software inventions, then the entire application of the system should be looked at, as there is clear danger for the future of the entire field.

Ms Meeker also neglects to explain one very important point. Why are software patents needed in Europe? True, the EPO has issued some, but they have not been subject to the same level of enforcement than in the United States. I believe that this is because owners may fear that courts could easily strike them down, as it is obvious that they are strictly in contravention of the written word of the European Patent Convention. The low level of enforcement has made European software patents very weak indeed, and is the main reason why you have had the push by some sectors of the industry to obtain a directive. It is also clear that the European software industry is not suffering from the problems with software patents. On the contrary! Europe has a lot to win from curbing software patents. Software development in the United States has become such a toxic environment that Europe could become a beacon of new software innovation.

1 comment:

Axel H Horns said...

In particular on the Internet it appears to be common ground that in Europe patents on computer-implemented inventions are nothing else than "software patents" which are "illegal" because of they have been granted in violation of the provisions of the European Patent Convention (EPC) and of similar clauses in the national Patent Acts of various EU Member States banning patents on "computer programs as such". In this context, the efforts of the EU to harmonise the Law by means of the Directive on the patentability of computer-implemented inventions are denounced to be merely an attempt to change the law ex-post for "legalising software patents" in order to allow big multinational corporations to successfully sue Small and Medium Entities (SMEs) or even Free and Open Source Software (F/OSS) programmers on the basis of dubious claims which would not be enforceable without that EU Directive.

Such representations are, however, contrary to the facts.

All of the competent national Courts throughout Europe as well as the Boards of Appeal of the European Patent Office resembling a Court on top of the EPO have a long-standing tradition of issuing case law constantly accepting the patentability of computer-implemented inventions in general. All these bodies have refused to accept any opinion according to which patents on computer-implemented inventions would, in principle, violate the ban on patenting computer software as such. In fact, today there is merely a lack of agreement in particular how the required degree of technicality should be determined. The EU Draft Directive aims just to fix that problem on the basis of a snapshot of the case law of the Boards of Appeal of the European Patent Office as it stands now.

And it should be mentioned that, even without the EU Directive, such patents on computer-implemented inventions are, as a matter of routine, enforceable in the Courts like other types of patent claims, too. However, patent infringement cases are relatively rare events throughout Europe. And, in contrast to the US, in many countries (e.g. Germany) Court files are not per default open to the general public. Hence, it is not as easy to learn when another infringement case based on a patent on a computer-implemented invention has been launched.

And, there is no "double protection" when patents on computer-implemented inventions are granted. A patent is related to certain ideas and principles behind the actual fabric of the computer program code qualifying as an invention in the sense of the patent law, whereas copyright relates to the fabric as such. Hence, the subject-matter of patent law, on the one hand, and of copyright law, on the other hand, are completely distinct.