John Gray, a patent attorney with Glasgow-based patent and trade
mark attorneys Fitzpatricks, presents his views to OUT-LAW on the
controversial Directive on computer-implemented inventions - and on
separating facts from fiction.
The City of Munich stalled plans to put Linux on thousands of
desktops early this month, citing fears that a forthcoming European
Directive on the patentability of computer-implemented inventions
could leave it exposed to litigation.
Although the rollout is back on track, this was just the latest
attack on one of Europe's most controversial Directives. But much
of the criticism is unfounded, according to John Gray, a patent
attorney with Glasgow-based patent and trade mark attorneys
Fitzpatricks. Here, Gray presents his views on separating the facts
from the fiction.
Will software patents be allowed under the Directive?
There are no moves to set up a system similar to the US: the
draft Directive is actually intended to reinforce the boundaries
established by case law, and prevent any drift in a more liberal
direction.
The governments of member states have been trying, through the
European Council and Commission, to consolidate and formalise the
status quo in European patent law. But this effort has been
frustrated by a small but highly organised and vocal lobby, based
on a selective and romantic image of computer programmers all
working alone on their own projects.
The current law and the draft directive do not allow patents to
be granted for computer programs, methods of doing business and
mathematical methods (among other things) as such, but they also
make clear that inventions making a serious technical contribution
are not excluded from patenting merely because modern apparatus in
the form of a computer is used in their implementation.
The rash of amendments inserted into the draft by the European
Parliament last autumn simply resulted in a dog's breakfast, which
anyone experienced in patent law could see had no chance of
becoming law, and the Commission refused to proceed with it. In
particular, the amendments inserted all manner of overlapping and
slightly different provisions all trying to achieve the same
result. The only sure result of that would have been a beanfeast
for lawyers trying to understand and advise companies on the limits
of patentability. There would also have been serious "collateral
damage" to patents in all sorts of areas of technology beyond
software.
Returning to the Linux story, inventions in software operating
systems have always tended to be more likely to have the necessary
"technical contribution" for patentability than application
software, because operating systems are more concerned with the
"nuts and bolts" of the machine on which they operate.
Linux, of course, falls into the field of operating systems, but
I have no idea how anyone could judge that a change in patent law
could equip them to decide whether or not to choose Linux over
other systems. The quotes I read from Munich City said there would
be no "dramatic setback".
Should we ban all software patents?
Microsoft for one has vowed to obtain patents at a rate of
thousands per year. These would impact European companies trying to
sell into the USA even if some of them would not be patentable
under European laws. Gray sees three main difficulties with banning
patents for all software-implemented inventions.
Firstly, it is simply odd that we as a society should wish to
award patents as an incentive to those who develop new electronic,
mechanical and chemical products, but not those who choose to
develop software solutions to human needs. Many software engineers
owe their jobs in part to patents held or licensed-in by their
employers.
Secondly, it is also impractical to draw a clear line between
electronic systems and "software" inventions as the software and
the machine work together.
In any case, the European legislature has undertaken lengthy
consultation and objective deliberations and decided that a
free-for-all on the US model is not wanted here, but neither is a
complete ban on patenting computer-implemented inventions.
Will the proposals benefit only larger companies?
A patent is designed to allow companies large and small to
defend themselves against a predator who might wish to short-cut
the risky development and marketing process and copy their
successful products on a big scale and put them out of
competition,
We often hear that we (patent attorneys, lawyers etc.) are in
the pocket of the big companies, and this line is used extensively
by the anti-software patent lobby to discredit anyone who takes a
different view. But patents are one of the few tools by which small
companies in particular have a chance to level the playing field.
If you have a patent (albeit you must invest something to obtain
and enforce it), you at least have something to make the big boys
talk to you. They may not need to "buy your soul" to copy your
ideas, but they may have no choice but to buy your patent. It
baffles me why small software designers should seek so vehemently
to talk themselves out of this form of protection.
For serious business people, with innovative products or
services that need long-term investment in development and
marketing, to have any chance of success in the global market
place, patents are a useful option, to safeguard the investment as
much as possible.
But at the moment we are pushing the limits of what can be
patented in this country when clients ask us to protect innovations
in such areas as scientific modelling, knowledge management, speech
and language processes and logistics, as well as banking and other
financial services.
This is likely to be damaging in the long term, as it will harm
the ability to raise capital to invest in product development and
marketing in these key areas. At present it is resulting in most
innovators either filing for protection in the US only, or not
filing at all.
Could we see retrospective software patents?
No. If software patents are permitted, no idea that has been
already published or sold in a product could be monopolized
retrospectively by a patent. But if you have an idea which you have
kept secret, the patent system would still favour the person who
puts it all down on paper for the world to see in the hope of
securing a patent. That could be you, or it could be someone
else.
The patent system promotes disclosure of techniques that would
otherwise have been kept secret, by offering the best ideas a
limited form of monopoly. Also the person who discloses ideas
publicly, whether by a patent or any other way, prevents others
from monopolizing the same thing and routine developments. While
patens have long been used in other fields of technology, the
software industry historically has relied more on secrecy, and
allowed itself in the early years to be talked out of patent
protection. Only recently has it begun to think of publishing and
sharing its source code for the greater good (the Open Source
movement). This is the reason why patent offices do not yet have
the knowledge base to tackle the sudden burst of software patent
applications.
What about the cost of patents?
Patent protection can be expensive. But too often patents are
judged unaffordable simply because nobody included the costs in the
initial business plan. Cutting corners at the early stage also
increases the risk of needing court action to enforce your patent
and ultimately increases the risk that you will fail to enforce
your patent.
I have also found a quirk of perspective by which patents look
disproportionately expensive to software developers compared with
other, more traditional inventions – namely the fact that software
developers can work miracles with only time/wages and relatively
little capital equipment outlay.
More "traditional" engineering on the other hand requires
materials, equipment, prototypes, and other items – all of which
are significant costs in a new development, and make patents look
less of a burden in proportion.
If patents are the biggest expense you have to worry about,
count your blessings!
In addition, the Government is actually considering proposals to
provide a general "fighting fund" for patent owners to help them
enforce their patents. This would be based on a form of insurance
funded out of everybody's patent renewal fees. I suspect patents
would be much more valuable to SMEs if such a system could be made
to work.
Is it only the lawyers who will benefit from the new
Directive?
Only in a positive way! A true, wasteful gravy train would be
provided by the "dog's breakfast" achieved by the anti-patent
lobby, through which only the big companies would be able to afford
to pick their way.
Even the present situation gives me no satisfaction at all. For
one thing, I get no gravy advising innovative companies that their
ideas are not judged worthy of patent protection for the arbitrary
reason that they are implemented by programming a computer rather
than shaping a cog wheel.
Secondly, UK companies in science and engineering who wish to
pursue patents with a strong software content presently have to pay
the likes of me more than those with other types of inventions,
simply because they have to work around these arbitrary and blurred
exclusions.
In the US, by contrast, software and internet-based start-ups
can raise capital and build markets with protection from their own
patents. Whether or not they can get the same patents in Europe,
European firms are left facing the new polished, high-volume,
well-supported products in their home markets.
Even though you are a UK or European company, if you have global
ambitions, you will be exposed to patent threats in the US
marketplace without having anything to fight back with.
It is important to acknowledge that the system is not perfect,
and never has been. However, it has checks and balances and is
adaptable over time. Too many voices at present simply deny that
the patent system has any relevance to software technology, and see
only the potential injustices and not the upside. The companies I
serve, large or small, would simply prefer to get onto the real
work of promoting and commercializing innovation to the benefit of
themselves and the wider economy.
So in conclusion I just ask the Scottish/British/European
software producer with original ideas to bring to market and with
global ambitions to think twice before opposing patents for
computer-implemented inventions.
I would also reassure those with no innovations and no global
ambitions that they need not fret so much with the anti-patent
lobby. The truth is that neither the patent system nor the mythic
terror that is the "big boys" is likely to bother its head about
them.
John Gray's comments were first made to the Now Business
forum. Edited highlights have been reproduced here with John's kind
permission.
