[Fsfe-uk] Patent article for review

[Ciaran O'Riordan]

Hello all,
  I was contacted (through AFFS) on Monday to write an article for
Electronics Weekly on Software Patents.  The audience is a mostly
patent loving crowd that views patents as something that protects
them the way we believe the GNU GPL protects us.

  The deadline was short and I found it hard (explaining without
being condescending, summarising without omitting).  Below is
a copy of what I finally submitted, it could be better but I
don't think there are any big tactical mistakes in it.  I can
mail a slightly updated version to the magazine tomorrow morning.

  The fewer changes I make, the more likely they'll update the
text for me.  Publication date is Wednesday 28th but tomorrow
morning is "freeze".  (This is why I haven't posted the details
of my speech, I hope to do this on thursday.)

  Please let me know if there is something terribly wrong with
this.

Thanks.
Ciaran O'Riordan

(there are a few typos which I will fix and I'll ask to mention
 ffii.org and www.softwarepatents.co.uk.  I'm also going to
 suggest an alternative title of "The Case Against Software Patents",
 and let them pick one.)

> America has allowed Software Patents since the mid eighties, the European
> Patent Convetion specifically dissallows the patenting of "programs for
> computers" but some software patents have been slipping into the system in
> Europe, brining their patentability into question.
>
> Are Software Patents good for Europe?
>   --by Ciaran O'Riordan
>
> Some proponents of the patent system think it's natural to extend it to
> other fields but software development is a lot different to hardware
> development.  Software development can be done on any general computer, no
> significant investment is required for equipment or machinery, and the
> software can then be replicated infinitely without using up resources.  In
> this way, it is not just an industry regulation, it can affect individuals
> too.  Software is just a sequence of instructions, similar to sheet music or
> a recipe.
>
> Traditionally, the software industry has been regulated by the copyright
> system.  This works quite well for software since copyright is an automatic
> law, you don't have to apply for it or wait for it.  In contrast, using the
> patents system is a long, drawn out process.  Avoiding copyright violations
> in software is easy, it's a choice you make, but avoiding patent
> infringement can be impossible.  A patent may not be publicly viewable until
> 12 months after it has been applied for, 18 months in America.  In the
> software industry that is sufficient time for a complete development and
> release cycle.
>
> The number of software components in a finished product makes it quite hard
> to check for infringements.  MySQL AB is a company that develops a database
> product, their main business is selling components of the MySQL database to
> third parties who integrate it into their own products.  This style of
> development is common in the software industry and generally leads to better
> software since components can get tested by many companies rather than many
> companies developing their own components.  MySQL AB cannot check their
> millions of lines of code for patent infringements so when a company asks
> them if there are any patent issues with the database, the only truthful
> answer is "we haven't been threatened with any yet".  So working together
> becomes a legal minefield that should be avoided if possible.
>
> The 21 year term of patents is also at odds with computer software.  Not
> many software ideas are still usable after 21 years, the public will not
> benefit from the eventual disclosure so it may as well be 200 years.  21
> years is also long enough to out-live many software companies.  A recent
> phenomenon in America is "IP firms" approaching companies hit hard by the
> economy and offering to buy some of their patents off them.  The companies
> either say yes or go out of business, the IP firm then makes it's money out
> of licensing these ideas that they have not contributed to.  A system
> designed to promote innovation then funds the complete opposite.  Very large
> companies are mostly immune to these firms since they can afford to
> challenge them in court.  Small companies are mostly immune because they
> don't have any money to sue for.  Medium enterprise becomes the target.  At
> some stage, all companies must be "Medium" businesses.  A common path is for
> the company to start small and get a venture capitalist to fund them so that
> they can grow into the medium business sector.  This works well for all
> involved but how does a venture capitalist know that their investment will
> not simply make the small company a target for patent infringement cases?
>
> Finally, for software to be usable, it has to behave as a users wants and
> expects.  This means that one great new idea must be combined with many
> known ideas in order for it to benefit it's users.  A word processor has to
> be able to read and write Microsoft.s Word documents because they are a
> standard.  In America, Microsoft have patented their latest video format.
> Microsoft.s dominance is hard to compete with already.  Software patents can
> make competition illegal.