Sir Robin Jacob, a judge at the Court of Appeal who specialises in intellectual-property (IP) law, has questioned whether patents should be granted for software.
"Do we need patents for computer programs? Where is the evidence for it?" said Lord Justice Jacob, speaking at a seminar for the Society for Computers and Law on Thursday evening in London.
The need for software patents has been questioned by campaigners such as the Foundation for a Free Information Infrastructure (FFII), but few studies have investigated this issue. The European Commission has funded a study on the legal, technical and economic effects of software patents on innovation, but this study is not due to be finished until 2007.
Last year, the European Parliament rejected the directive on the patentability of computer-implemented inventions, which became widely known as the software patent directive. Many claimed that this directive could lead to the widespread patenting of software, as is the case in the US, whose patent system Jacob was critical of.
"The United States takes the view that anything made by man, under the sun, can be patented. And they have granted patents for business methods, mainly computer business methods, but as far as I can see it would cover a new and improved method of stacking oranges on a barrel," said Jacob.
Justice Jacob said that IP rights are often justified on the "pragmatic grounds" that they encourage research and development, but said that people have "got to look at all IP rights critically and say, 'do we need them?'"
One aspect of the patentability of computer programs that Justice Jacob said gives him "considerable concern" is the searching for prior art.
"It's been said that [searching for prior art] is all going to be sorted out and will be very easy in due course — I don't believe it. And some of the fuzzy patents that have emerged from the United States tell you that it's going to be very difficult to stop very ordinary things from being patented," he said.
This is a question of policy, rather than a legal question, according to Jacob. However, he admitted that he was glad that he hasn't had to consider any software patent cases in the Appeal Courts yet.
Criticism of the US patent system has been mounting recently. Last week, IBM said it will participate in a number of initiatives to improve patent quality, and a number of other patent holders in the US, including Microsoft, have also called for patent reform.
Jacob claims to have also noticed a change in the attitude towards patents, and IP in general.
"IP rights themselves may have reached a bit of a swing of opinion. One is detecting public disquiet in a number of areas of intellectual property, asking: Are we going to far? There's a serious worry about patent offices and how you stop them granting pretty ropey patents," he said.
An MP3 of Jacob's talk is available here, on the Society for Computers and Law Web site, and can be downloaded for a one-off charge.