FSFE at WIPO: Make it easy to challenge patents
With some delay, here is the second of three statements which FSFE made two weeks ago, at the World Intellectual Property Organisation (WIPO). This one is about “opposition systems”. What the hell is that?
These are the possibilities which your national (or European, as the case may be) patent system gives you to challenge a patent, either before it’s granted, or afterwards. Patent examiners are usually overworked and not very well paid. Also, they’re unlikely to be specialists in all the highly technical questions that they have to judge.
So this system’s results are similar to those we all know from airport security: They make mistakes. As a competitor, instead of being cavity searched, you might just get screwed over big time in terms of business.
Now, this is where the patent system actually tends to work better than airport security. (Note that this isn’t saying much.) Where at the airport you’ll just end up going through the traditional routine of “I want to talk to the supervisor!” – “I *am* the supervisor!”, there actually are defined procedures in place in most countries to oppose a patent grant.
Whether those procedures are really useful is quite another matter. In the case of software, FSFE argues that the damage which patents do in general far outweighs any conceivable benefit they might bring. This is why patents on software should not be granted in the first place. Never. Nowhere.
However, there are some unfortunate jurisdictions where software is patentable (e.g. the United States of America), and others where it technically isn’t, but still patents are enough of a threat to wring concessions from business competitors through FUD or outright extortion, such as Europe.
We argue that until software patents can be abolished in these jurisdictions (and competition in the market thus at least partly restored), it’s vital to have systems in place that make it easy to challenge patents granted on software. It should be not only possible, but actually feasible for both businesses and civil society to oppose a patent and get rid of it.
That said, here’s the statement on the topic which I made at WIPO two weeks ago.
STATEMENT BY THE
FREE SOFTWARE FOUNDATION EUROPE (FSFE)
TO THE 14th SESSION OF THE
STANDING COMMITTEE ON THE LAW OF PATENTS (SCP)
(Geneva, 25-29 January 2010)
We thank the Secretariat for the valuable overview of opposition systems provided in document SCP/14/5. Free Software Foundation Europe that in technology, and software in particular, functioning and accessible pre-grant opposition systems are vital.
Those jurisdictions which allow for the patenting of software, frequently see patent applications relating to technology where substantial prior art exists.All too often, such patents are granted.
As just one example, in November 2009 the US Patent and Trademark Office granted a patent on a procedure to temporarily give a normal computer user administrative rights. This technology has been in use in UNIX systems since 1980, and today forms an integral part of both GNU/Linux and Mac OS/X operating systems.
Another example is a patent on one-click ordering which was granted to the online book-seller Amazon in 1999. This technology had in fact been developed andused by Hearst corporation in 1995.
When the developer of the one-click ordering technology was later asked why he hadn’t patented this “invention” himself, he replied: “It only took me an hour to build. If I went down to the patent office after every hour of programming, I wouldn’t get very much done.” [source]
Besides illustrating the fundamental difficulties of granting patents in such a complex and dynamic field of software, such incidents negatively affect everyone concerned: A monopoly right is granted where it should not have been. The patent holder, licensees and third parties will have less faith in the qualityand reliability of patents in the future.
Most importantly, numerous parties who have based their business around a technology which was freely available at the time will be negatively affected, leading to a subsequent decrease of innovation and economic activity.
This harmful effect can in part be mitigated by providing third parties with an easy means to stay up-to-date on recent patent applications in combination with a well-defined, low-cost process for third parties to submit information which may affect the granting of a patent.
But even the most well-designed process would take a substantial toll on any innovator or SME, as the subject matter is complex, takes highly educated personnel and thus draws upon the very same scarce resources that SME and innovators require to innovate. This is one of the ways in which the patent system can stifle innovation, and one of the mechanics that inherently favour larger entities.
It would therefore be essential to provide SMEs and small innovators with an incentive to provide this crucial input to the patent offices in order to facilitate their research or else the process is in danger of becoming an obstacle to innovation itself.
This cost would have to be borne by the patent system itself, and would need to take the shape of a redistribution mechanism from larger to smaller entities, a mechanism that will be very hard to get right.
Whether the creation and maintenance of such a mechanism is warranted by an increase in innovation in the field of software should be closely monitored.
In order to obtain a balanced view, we would consider it beneficial for WIPO to develop or update guidance on the participation of third parties in this monitoring process. This guidance could form part of the organisation’s technical assistance effort, which are key to raising patent quality around the world.