Sad story in Oz

Posted Aug 29, 2003 14:32 UTC (Fri) by wookey (subscriber, #5501) [Link]

Looking at real patents is a very good way to get a handle on why anyone who writes software thinks the system is hopelessly broken.

The thing you have to get your head round is why large sections of society (especially anyone who actually works in this area) don't see a problem.

We had a meeting about this in Cambridge on Wed 27th which included patent professionals and had as speaker the official (Robert Bray) who was responsible for drawing up the Current EU proposal on behalf of Arlene McArthy. He's a reasonable chap and appears to sincerely believe that the directive is simply normalising the status quo, and thus will not do any harm. That's actually quite true, but this rather assumes that the status quo is acceptable. Any developer looking at a few Software Patents, whether in Australia or the EU, will find that it is not. The other point made is that passing this directive would 'remove legal uncertainty'. The JURI committee paint this as a good thing, but from our point of view it's not, as the uncertainty is the only thing stopping copanies trying to enforce their laugable patents in the EU.

However if we get this directive stopped that does nothing to stop the patent inflation that has been going on in the national courts (primarily of Germany and the UK) for years. They will continue to patent all sorts of rubbish. Bray said that they couldn't be stricter in the Directive than current case-law as it would simply be overturned. We have to strongly oppose that idea and insist that the EU can and does set policy in this area and must protect software _from_ patents and get us back towards the 'computer programs are not patentable' idea of the 1970s.

Anyone who already works with Patents or in an idustry subject to them can't understand what the problem is. They are so used to the idea of tying up every concept into private ownership that they see that as the natural way the world works, and describe software as 'an anomaly, that needs to join the real world'. The fact that software exists very happily with Copyright protection and adding patent protection will be a huge brake on innovation doesn't resonate with them. They simply don't believe it and can't see why software should get an 'exception' from patent 'protection' when hardware doesn't (and it's true that it's very hard to draw a legal line between them these days).

You have to remember to keep pressing the point that it is not a matter of 'normalising' the treatment of software. It has to be shown that there is a public benefit in giving state monopolies for software ideas - all the economic evidence and most of the evidence from people in the field is that it won't help (indeed it could easily be a disaster).

On the other hand Free Software has a huge advantage which is not often mentioned - everything we do is published straight away. That can be a powerful tool for showing that someone's patent is not valid because it wasn't new. The problem is that lawyers tend to only consider other patents when deciding if a patent is new, not code, and the costs can be prohibitive. Nevertheless we do have an advantage - as the body of free software accumulates it ought to be harder and harder for people to patent obvious things without there being loads of already-published code that already does it, or at least harder and harder to actually enforce their crappy patents. Indeed one thing that would hugely imporve the system would be if all applications were circulated to a distributed body of geeks who could check for prior art. It impossible for any Patent examiner to be an expert in all software fields - you need a distributed system. The incentive for doing this is that if we don't we may end up unable to write any code without infringing.