Tonnerre Lombard
FFII’s coordinator for Switzerland
EU commission takes another shot at software patents
After their failure to introduce software patents in Europe directly through two directives, then through the community patent and then finally through the «European Patent Litigation Agreement» (EPLA), the European Commission has come up with a new way to legalize software patents: the «United Patent Litigation System» (UPLS).
The proposal displays a vast amount of similarity with the EPLA, except that the highest instance is moved to a specialized patent court. Instead of judges, this court is run by «patent judges», who, just like in the EPLA, do not have a legal degree but are only trained by the European Patent Office. The European Court of Justice (ECJ) has no role to play in this and no right to review the decisions of the patent court.
This is another attempt of the patent system to move all control over patents and their applicability to the participants.
Why software should not be patentable
The big problem with regard to software patents is the question of invested effort. The whole debate about software patents usually evolves around the question whether or not copyright is a sufficient protection for software. In my opinion it is, which can be shown very easily:
- First you have an idea. This costs you nothing.
- Then you sit down and invest work in an implementation of your idea. This implementation is fully covered by copyright, and is your first real investment into the idea.
Surely, anybody could look at your product and clone it, but that requires that person to start at step 2 and re-do your entire investment in implementing the idea. Thus, this person has no competitive advantage of taking your idea. The investment software patents protect is essentially zero. This is a large difference from developing e.g. a machine, where a lot of material is usually invested into prototypes.
At the same time, the impact is not: software patents would forbid the competitor to implement his own variant of your idea. The idea is essentially monopolized, and the cost is carried by the community.
May 20th, 2009 at 6:48 pm
[...] addition to this, someone from The Free Software Foundation Europe provided the following explanation for the needlessness of software patents. [via Digital Majority] The big problem with regard to [...]
May 20th, 2009 at 7:01 pm
[...] addition to this, someone from The Free Software Foundation Europe provided the following explanation for the needlessness of software patents. [via Digital Majority] The big problem with regard to [...]
May 31st, 2009 at 12:00 am
The arguments against software patents have a fundamental flaw. As any electrical engineer knows, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. As a result, to be intellectually consistent those people against software patents also have to be against patents for electronic circuits. For more information on patents and innovation see http://www.hallingblog.com.
May 31st, 2009 at 7:16 pm
Dear Mr. Halling,
While your argument does explain reasons to implement a specific solution in software rather than hardware, you failed to point out the flaw in the logic. The investment into the software implementation of the solution is still fully covered by Copyright, so there is no reason such a broad claim as a patent would have to be applied.
Had the solution indeed been implemented in hardware entirely, then there would potentially have been an investment in form of pre-release ASICs and other overhead which may not be covered appropriately by applicable law other than patent law; I admit to not having considered that case fully as it is not related to a software implementation and thus out of the scope of this discussion.
Fact is that investments in software do not exceed those covered by copyright, which is what I was stating.
Kind regards,
Tonnerre Lombard