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posted by mpawlo
on Monday June 02, @10:30AM
from the time-is-running-out dept.
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Yesterday I was taking a walk in a rainy Stockholm. I don’t know if the thought ever occurred to you, but when it rains in Stockholm, it smells just like Paris. Maybe you have had the same feeling in your own hometown? Yesterday I smelled Paris, and I got that wonderful French feeling of go-ahead spirit, let’s try it-attitude, hope and joy that you get from standing by Place du Trocadero and view the Eiffel Tower just as you fill your lungs with Parisian oxygen. It was in other terms, just the opposite feeling to the one that I get from following the debate on software patents.
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Software has traditionally been protected by copyright, the same way books are. The protection for books has been around for a long time and seems to be working quite well. The protection of software is a newer phenomenon and software has little in common with books. The copies are produced and look different and so is the manufacturing of the copies. Even the creation of a book and that of software differs. One alternative to copyright protection is patents. Some argue that software should be patented instead of copyrighted.
To the advantages of software patents one could add that the developers get a stronger and more distinct protection of their works. However, the big problem with software patents is that they protect ideas and technical innovations. The big advantage of not granting software patents is that it is legal without cross-licensing to write two software programs that solves the same problem and conducts the same assignment, with no risk of copyright or patent infringement. Granting software patents, the second software program could constitute an infringement of the first software program, should the programs give the same technical effect.
The other day, in Brussels, Belgium, a conference on software patents was organised. I would even call it a protest, but some of the participants do not approve of that. The conference was held because there is work being conducted in the EU to make changes in the patent area and introduce software patentability. Some prominent U.S. citizens participated in the Brussels conference, such as the father of free software, Dr Richard M Stallman and the Stanford Law Professor Lawrence Lessig. Professor Lessig and Dr Stallman expressed their opinion that software patents do not by necessity increase the amount of innovations or the amount of programs in the software area. On the contrary, Dr Stallman and Professor Lessig argues that software patents may reduce the amount of software programs and seriously damage the competition and also hurt developers of free software and open source programs.
Reasoning along the same line is presented in an open letter signed by a number of distinguished researchers, among them the Swedish Chalmer Professor Bengt Nordstrom. The researchers state that software patents are ethically outrageous and unnecessary from an economist’s point of view.
The marketing director of Swedish patent consultancy firm Awapatent, Mr Stefan Hjelmqvist, says in an op-ed piece published by Computer Sweden, that the protests against software patents are divorced from reality. Mr Hjelmqvist states that the drafted patent directive only establishes what’s already legally in place through practice.
I do not think it is that simple. It is stipulated in the Swedish Patent Act that software never should be considered an invention in the meaning of the Patent Act, thus an applicant never should be granted a patent based on software. The principle derives from the European Patent Convention and was implemented in the Swedish Patent Act July 1, 1978. The principle was established in practice even before that. However, in spite of the above, it is not impossible to be granted a patent on software in Sweden. In practice, the Patent Office shall do a comprehensive study of the application / innovation and the fact that a part of the application is a software program shall not as such rule out the possibility of a granted patent. Among other things, the Patent Office will determine the technical effect of the innovation. Still, there is a difference between this judgement and the new EU writing that would endorse software patentability. The million-dollar question is how to determine the technical effect. Should the standards for the demands of technical effect be set too low, a lot of software applications will be granted patents thus creating the effects that Dr Stallman and Professor Lessig deprecate.
The new writing that the EU is working on should harmonise the national courts’ interpretation of what is patentable and not when it comes to software. So far I think it is a sensible suggestion. Similar rules must apply within the internal market, should it function properly. However, the harmonisation is in effect done through an expansion of the intellectual property rights. Instead of choosing the least favourable method in respect of software patents, EU choose the most favourable one. It will most likely be easier to be granted a software patent.
Researchers James Bessen och Robert M. Hunt have studied software patents from an empirical perspective and found that software patents are used to claim certain business areas in a way that leads to less ventures in research and development and not increased research. Patents should, in my opinion, be granted in order to foster and stimulate innovation and progress, not to stifle it. Even if Mr Hjelmqvist is correct in his assumption that the new patent directive only states what’s already in force in practice, it does not seem like a desirable development for a researcher, software developer or innovator. Hence, I find it peculiar to, like Mr Hjelmqvist, disregard the protests against software patents as being 'divorced from reality'.
There is a need of a deepened discussion on the protection of software and related innovations. There is a clear and justified need for the developers to get protection for their works. However, it is not evident that software patents will correspond to that need. It seems to me that software patents might instead create a situation where the development of software ceases and where patents hinder further progress in IT and the Internet. Maybe we should try to find a new sui generis protection of software that is not copyright nor patents.
Although I think that the need for this discussion is evident, it seems like parts of the IT industry fail to agree. The industry association EICTA, with members like IBM, Nokia and Microsoft, urged its members not to participate in the conference in Brussels. This was a golden opportunity for software patent advocates and adversaries to meet and exchange views. It is now lost.
The arguments for software patents and the apparent lack of a public and open debate smells more and more like a Brazilian mountain of garbage. I think it would be most welcome if we could make the debate slightly more Parisian. To an innovator a patent has the air of go-ahead spirit, let’s try it-attitude, hope and joy. To many software developers patents just stink. Hence, something is wrong and the industry need to maturely enter into the debate before fait accompli.
Mikael Pawlo
Mikael Pawlo is an associate of the Swedish law firm Advokatfirman Lindahl. On nights and weekends he works as an editor for the leading Swedish open source and free software publication Gnuheter. Pawlo is the Swedish editor of the Nordic Intellectual Property Law Review, NIR. He is also contributing editor of the Harvard Berkman Center publication on Internet law issues, Greplaw.org.
Please note that other Greplaw contributors might have a different take on the subject.
Related links:
The Brussels Conference.
Stefan Hjelmqwist’s op-ed.
Lawrence Lessig.
Richard M Stallman.
Researchers’ petition against software patents (PDF-format).
Study by James Bessen and Robert M. Hunt (PDF-format).
Industry associtation EICTA.
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