Do we really need software patents? There's no question that some software patents are controversial, and most would agree that some reform is needed in the U.S. to prevent predatory patents or other roadblocks to further advancement by 2nd-generation programmers. But we are in Europe, and many on this continent would like to go further than that. In the not too recent past the European Union had a policy stating explicitly that no software should be patented. An attempt to protect software via copyright law has proved, shall we say, less than successful, and the EU has since tried to find a way to extend patents to software in a way that adheres to the TRIPs agreement. Just last month, that effort stalled once again, an ominous development indeed. That reality overshadowed the conference here, such that even when patents weren't specifically on the agenda, they were central to discussions.

Despite Professor Salin's contention, CompTIA Vp-Public Policy Robert Kramer didn't believe software patents stifle innovation. Disputing the suggestion that patents are hoarded by large companies stifling competition, he said small companies are sixteen times more likely to take out patents than large ones. (Salin didn't appear to have heard this statistic before, and admitted he was struck by it, while noting it made sense because a smaller company is more likely to have the ability to innovate easily.) Kramer, who has a history in the financial industry, noted that patents are critical to small companies in securing investment from venture capitalists and loans from banks.

There was a representative from Europe's Free Software Foundation in attendance, and he stuck to his single talking point throughout the day - software patents are bad. He was a constructive participant in the debate, however, and even found common ground with an unlikely ally at one point in the day, Association for Competitive Technology President Jonathan Zuck (sorry, I'm going to make you wait until another blog to see that miracle unfold). Jonathan did take issue with one point by the FSF representative, namely that the patent system works only to the benefit of lawyers. Jonathan is well-known in Washington as one of the few public policy advocates who isn't a lawyer (he's a veteran software programmer), and he began by agreeing with his new FSF friend: "Lawyers are the principal beneficiaries of the patent system." He then added: "Lawyers are the beneficiaries of almost any system." In fact, Jonathan said he was exaggerating in saying lawyers are the principal beneficiaries of patents; instead, speaking from experience, he said small businesses are the principal beneficiaries.

In a later session, University of Parma Professor Cesare Galli gave an excellent presentation on the tortured history of software patents in the European Union. I can't possibly describe it and give it justice, but hopefully we can post his brilliant PowerPoint presentation here on our site soon. To summarize, he said the EU is trying to find a balance between not patenting ideas but patenting software that leads to improvements of a technical nature. That is an area Europe has in common with the U.S. The latest EU directive on software patents was amended by the European Parliament in ways that are not so popular, Galli said, noting in particular that the Council in charge of the directive disagrees with a Parliament amendment that would all but insist that any software patented be interoperable. The Council said interoperability already is promoted in the existing directive. (Please keep in mind, dear reader, that speaker after speaker made clear at our conference that interoperability is nearly universally beneficial in the market, and that market forces propel most software toward interoperability, without government help.)

In an earlier blog, I noted that Professor Salin described patents as obstructing innovation. In fact, he discounted patents as monopolies, an argument popular in the Free Software movement. PFF Senior Adjunct Fellow Solveig Singleton took some issue with that in her panel discussion. "There is not any evidence that software patents have caused market problems," she said. As for monopolies, "you could describe real property that way," but software patents don't restrict consumer choice. Yes, Solveig said, reform of software patent processes are warranted. Software has a lower R&D hurdle than most intellectual property, it can have a shorter shelf life, and there are other distinctions that can be made. Those differences, however, "invite general patent reform" in a technology-neutral way, she said, "rather than specific industry exceptions." She also didn't believe that software patents threatened open source software. That community is an integrated organism that responds collectively when one part of it faces a challenge. That community is "resilient enough" to survive and thrive in the software market, Solveig said.

posted by Patrick Ross @ 7:10 AM | Digital Europe

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