Software patents: They’re back!

"I’ll be back" has generally made it into history either as a promise or threat by a mediocre actor and/or even more mediocre gouvernator. But while the Terminator needed 7 years for a first reappearance, and another 12 for its second, the Terminator of European Economy (Mr Charly McCreevy) only needed months to bring software patents back on the agenda, as we learned last week.

While IBM senior vice president John Kelly compared software patents to nuclear weapons in his April 2005 statement to the New York Times

     "This is like disarmament. You're not going to give away
    all your missiles as a first step."

the European Commission is happily pushing for the economic equivalent of Terminator’s SkyNet. (In case you are new to the subject, you can read in this series of open letters how software patents affect various areas of economy and politics)


Yesterday, German publisher Heise featured another article about the reappearance of software patents on the agenda, following up on an article in which Günther Schmalz, head of SAP’s software department, is quoted saying "It’s starting again."

And just as the first Terminator went down after a long and desperate struggle involving all sorts of fireworks, Mr Schmalz is being reported saying that software patents were buried

     due to the better lobbying of the opposition, said the SAP
    manager. They met the members of the EU parliament far more often and
    hit the parliament's nerve with their demonstrations.

but just like the second Terminator was more fearful and dangerous than the first

     the patent proponent expressed hope that his camp will be
    better prepared this time than during the last struggle.

So they’re coming back, and they are prepared. But so are we, and like Linda Hamilton did not stop coaching her son for the next meeting with another Terminator, we did not let down our guar. We were always aware they would be back.


Günther Schmalz is also quoted in the following way:

     Schmalz justifies SAP's commitment for a EU-wide regulation with SAP
    seeing patents as the only way to ensure returns on its development
    investment. Copyright is no solution, he continues, as the actual
    writing of code only makes up about 20% of the development of
    software. "Those who drive innovation need patents", Schmalz
    stresses. "Those who don't imitate."

This puzzled me for a second in the same way that the logic of proponents of "intelligent" design sometimes surprises me with its circular logic, or in the way a person on an airplane trying to open the door in mid-flight would puzzle me. I have tried to understand how it is possible that the head of SAP’s software development could make such a nonsensical statement about software development. Here are my theories:

  • Mr Schmalz believes that software developers are essentially glorified typists, and that whenever no key is being pressed, no programming is done. This would imply a disturbingly limited understanding of what software developers actually do.
  • Mr Schmalz does not consider testing, bug-fixing and other tasks to be part of programming. If programmers have to work according to that maxime, it could explain the quality of some of SAP’s software, I guess.
  • Mr Schmalz thinks that it is the act of typing that constitutes Copyright, which would be an amazingly naive view of Copyright law. It would also mean that the Copyright of a book would be with the typist if the literary author "merely" dictated it.
  • And finally my favorite: SAP is such a great employer that programmers only have to work 20% of their time and spend the rest reading the papers, getting massages, doing sports and watching TV.

In any case this statement makes it seem like Mr Schulz does not know much about software development or law. A peculiar combination for a head of software development. But then: SAP hasn’t really developed anything innovative in years. And no, I don’t dare to predict the causality in this case. Bill Gates however seemed to know much more about software development when he said in an internal Microsoft memo that was published by Fred Warshofsky, The Patent Wars (1994):

     "If people had understood how patents would be granted when
    most of today's ideas were invented and had taken out patents,
    the industry would be at a complete stand-still today. [...]
    A future start-up with no patents of its own will be forced
    to pay whatever price the giants choose to impose. That price
    might be high: Established companies have an interest in
    excluding future competitors."

But maybe Mr Schmalz was misquoted and he actually said that: "Those who drive away innovation need patents."


Misinformation has at all times been part of the pro-software patent campaign. Remember the term "computer-implemented invention"? People tried to say this directive was about allowing patents on washing machines, braking systems, battery chargers. How many washing machines did SAP sell last year? Or the year before? Why would a pure software company take an interest in this directive if it weren’t about software?

Truth is that this debate is only about software patents, about monopolies on logic blocks, ideas and applied mathematics. Those who would like to see these fundamental building blocks monopolised in their hands are back. We beat them once, and we can do it again.

Because even though the second Terminator was so much quicker, stronger and more well-prepared, we all remember the end of the second movie.

About Georg Greve

Georg Greve is a technologist and entrepreneur. Background as a software developer and physicist. Head of product development and Chairman at Vereign AG. Founding president of the Free Software Foundation Europe (FSFE). Previously president and CEO at Kolab Systems AG, a Swiss Open Source ISV. In 2009 Georg was awarded the Federal Cross of Merit on Ribbon by the Federal Republic of Germany for his contributions to Open Source and Open Standards.
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