Analysis The European Commission has launched its consultation on software patents, but the accompanying "independent study" produced on behalf of the Intellectual Property Institute (IPI) in London is biased in favour of the patents establishment, as well as being ill-informed about the potential consequences for Europe.
The EU will be accepting comment until 15 December - after the end of the European Patent Office (EPO) Diplomatic Conference in Munich in November which may well legalise software patents - so quite what effect it will therefore have is questionable.
As the consultation documents note, the legal situation of the EPO Convention is unsatisfactory, not just because of a lack of "legal clarity and legal certainty" as the Commission states, but because the EPO has incorrectly applied the law and the EC is reluctant to be blunt about this. Although software patents are not at present legal in Europe, the EPO has used a trick to get round this by granting patents for a process or invention that uses a computer program.
The IPI is the patent establishment's mouthpiece, its board and membership being primarily composed of IP lawyers, judges, patent agents, and large international firms with significant patent holdings. Even worse - it admits that its mission is to "fund research, the fruits of which will provide greatest benefit to the Institute's stakeholders", to wit our learned friends.
Software patents - deals to stop progress?
Of course, patents have their place - the IPI director says in the latest newsletter that "a patent is a deal" - but the authors of this study are clearly unable to grasp the ridiculousness of advocating patents for software, which can perhaps best be characterised as deals to stop progress. One reference in the study is to a paper entitled "The case for patent protection for computer program based inventions" by one of the study's authors, Robert Hart (who is described as an "independent consultant"). This doesn't exactly suggest the independence of the author as far as the subject of the report is concerned.
The IPI study says it addresses the economic impact of patentability of computer programs, but the study is deeply flawed in several ways. The conclusion that "there is no evidence that European independent software developers have been unduly affected by the patent positions of large companies or indeed other software developers" ignores the simple fact that in Europe the threat is in the future, when coincidentally IPI's members will start collecting fees for the enforcement of software patents.
The study admits that in the US "there is abounding evidence that the profitability and growth of independent and SME software developers in the States has often been to a significant extent dependent on the possession of patent rights... there is deep concern that patents are being granted on trivial, indeed old, ideas... that patents may strengthen the market position of the big players... that the computer program related industries [yuk - could they mean software industry?] are examples of industries where incr emental innovation occurs and that there are serious concerns whether, in such industries, patents are welfare enhancing." Quite so.
Screw the GNU?
For its part, the EC Internal Market Directorate has also missed the point in suggesting that it is the view of the open source movement that it would be ill-served by a software patent regime: the plain truth is that the whole software developer community is disadvantaged by software patents, as well as all users of software - from multinationals to consumers. It is true that smaller companies will be disadvantaged more because they lack a legal department and a patent portfolio with which to fight claims. The open source community just happens to be more articulate than commercial software developers, and of course has an admirable model to protect software in the form of the GNU General Public Licence. Little consideration in the debate so far has been given to sentiment against the open software movement by the major proprietary software developers, but it would be surprising if this thought had not crossed their minds as a sweet form of revenge.
It is not unreasonable for the Commission to wish to harmonise national patent laws, although the overlap in functionality between national offices and the EPO is rather silly. What the Commission has not done is to study in sufficient detail the potential impact on the European economy, and particularly on the European IT industry. Although there are a few high-profile US cases of attempts at software patent enforcement so far, there can be little doubt that heavy enforcement will come. Patent lawyers must be rubbing their hands, waiting for the starter's gun from their clients, although the more reputable law firms will perhaps realise that attempting to enforce software patents may well be viewed in the same way as are most shareholder class actions in the US - a rather grubby practice involving rather small law firms. And with Amazon.com in the queue at the EPO for a European one-click patent, wouldn't it be interesting if for once the EPO did a proper job on the prior art and turned this one down?
It is a good thing that at last the Commission has embarked on this consultation exercise, but the strength of the lobbying by the patents industry is so great that the voice of the IT industry may be hardly heard. It's at times like this that he lack of a strong European IT trade association is most felt. Realistically, it is impossible before the Munich meeting to give proper consideration to the software patent issues that will have such a profound effect on European businesses.
Another study, to balance that by the patent promoters, must be undertaken by the Commission. Meanwhile, pressure should be brought to bear on the EPO to postpone its vote to legalise software patents pending the result of better consultation. It is absurd that the EPO is not directly answerable to European voters, and that its inadequate website does not reveal the people who will be voting on behalf of their countries. Certainly the EU has directive power over national patent offices that generally nominate the delegates that vote at the EPO, so perhaps there could after all be some EU leverage. Reform of the EPO would seem to be a good starting point. ®