Arlene McCarthy's software patent "factsheet" [LWN.net]

Arlene McCarthy's software patent "factsheet"

Posted Sep 4, 2003 21:24 UTC (Thu) by jdthood (subscriber, #4157)
Parent article: Arlene McCarthy's software patent "factsheet"

McCarthy is essentially arguing that she is on the same side as her critics -- she too wants to stop software patents from getting too far out of control.

The difference between McCarthy and the FFII is that McCarthy thinks that her poor proposal is better than the bad status quo, whereas the FFII thinks that her poor proposal is worse than the good status quo. McCarthy and the FFII differ over the proposal because they differ over how good they think the status quo is.

McCarthy argues that patents on computer implemented inventions are already a fact and that her proposal is less bad than the status quo because it introduces some restrictions. She says that the EPO has already granted 30,000 patents on computer-implemented inventions and that even this hasn't killed small companies or free software programmers; so life will surely be better with the new restrictions in place.

The problem with this argument is that her new restrictions don't amount to much because of the contradictions mentioned earlier. (The inventiveness of computer science is in the creation of algorithms. Creation of algorithms isn't patentable. Application of algorithms to particular problems is straightforward. Application is patentable. So, what is straightforward and obvious (but has the appearance of novelty because of the presence of a novel algorithm) is patentable. So, excluding the non-obvious from patentability doesn't exclude anything.) Yet the passing of the proposal with strengthen the hands of patent holders by legitimizing the status of their otherwise dubious patents.

  Many small companies have given their support to this directive, which
  will give them more legal certainty as it offers the possibility of
  protection for their R&D investment, and so assists in spin-off creation
  and technology transfer and generating new funds for new investments.

  Indeed recently, a small ten-person company in an economic black-spot in
  the UK granted a licence to a US multinational for its voice recognition
  software patents. Without European patent protection in this field, the
  small company could have found itself in the perverse situation whereby
  its R&D efforts and investment would simply have been taken by a large
  multinational company, who, with its team of patent lawyers, would have
  filed a patent on this invention. The EU company could have been faced
  subsequently with patent infringement proceedings.

McCarthy is very confused here. The question of whether companies play on level playing fields in the U.S. and Europe is entirely independent of whether the U.S. and Europe have software patent laws. McCarthy's little black-spot company could have obtained a patent in the U.S. and used that to extort money from the unnamed U.S. multinational; the multinational could have used its patents to threaten the little company right back. And in a Europe without software patents, neither could do either.

  Some lobbyists would like us to believe that having no patents is an
  option - it is not. No patents would put EU software developers at a
  severe disadvantage in the global market place, and would hand over the
  monopoly on patents to multinational companies.

This is McCarthy's key mistake. She thinks that software patents are needed in Europe so that (small) European companies can compete with (big) American companies. That is simply not true. European companies can compete with American companies in each part of the world under the laws that apply in that part of the world.

Can McCarthy really not understand this?

(Log in to post comments)