Software patents: 'A really bad idea'

Summary:Robin Gross, former IP attorney for the Electronic Frontier Foundation, gives a US perspective on the dangers of the EU following North America's lead on software patent laws

Robin Gross is an attorney and executive directive of IP Justice, a US-based grassroots civil liberties organisation that promotes balanced intellectual property law and protects freedom of expression. Before founding IP Justice in 2002, she was staff attorney for Intellectual Property with the Electronic Frontier Foundation and represented 2600 Magazine and Princeton scientists in litigation under the Digital Millennium Copyright Act.

ZDNet UK caught up with her to talk about the Software Patents Directive currently passing through the European Union.

How useful are patents for protecting software?
They are a really bad idea. The US did go too far in granting such broad patents for software and business methods as processes. It is stifling innovation and preventing legitimate market competition. The patent system just doesn't work well for software.

But some people must be happy with the patent system for protecting software.
Yes, they tend to be the people who hold the patents and extort large sums of money from other companies and individuals who want to be able to use that software or process. There are winners in the patent system but they will be large companies. The vast majority of smaller businesses are hindered by the inability to use the software in ways that suits them.

But if somebody invents something, the patent system grants them a monopoly in return for sharing their invention. Surely that is a good thing?
That is the argument in favour of the patent system, but you have to realise that IP law is about striking a balance, about giving a certain amount of protection and reserving the rest for the public. It is not always the case that greater protection is in the best interests of promoting innovation and creativity. You end up doing harm. The trick is to strike a balance that maximises creativity and innovation. We need to find incentives for creativity. We have to find that delicate balance.

Some people say that copyright is sufficient protection for software. What's your view on that?
I don't know any other kind of IP that is capable of getting both copyright and patent protection. These are designed for both different types of works: copyright is for more creative works, and patents are more for processes and methods...inventions. By giving software the double protection, the public's card gets left behind. I would favour copyright over patent protection for software. There is copyright protection on non-binary code and that is good enough protection.

Topics: Developer

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