Despair greets software patent bill

Despair greets software patent bill

Summary: Talkback: The passage of the software patents directive to the next step has dismayed many in the industry - and created some new Euro-sceptics

TOPICS: Government UK

The news that the EC has adopted the software patent directive, struck a chord with ZDNet readers. However, the note was more of despair than anger.

"I do hope this is an error, and wishful thinking from the EC," said one reader in disbelief. "If it is true then it is a very sad day for Europe and the World. The people responsible for this are criminals, the fact that it is white collar crime doesn't make it any better."

Some people fixed on Microsoft as a major beneficiary. "With one hand they fine Microsoft £500m. With the other they give them the means to make £500bn," said Steve J, describing himself as a "soon to be poor software developer".

One reader predicted that US experience in patents will give it the upper hand. "US portfolio companies have had years to pick up patents on obvious things like shopping carts, online purchases, or even decades-old open standards," said researcher Olav Petri. "Allowing software patents in Europe would basically allow the US to walk all over any European business." Chief technology officer Bill Franklin added: "OSS development is now going to be spearheaded in the third world."

Some readers explained their opposition so eloquently, it seems hard to believe the EU could ever support the directive: "Imagine a plumber not being able to use a clockwise turn with his spanner to tighten a leaky pipe due to the 'clockwise turn' being patented by a large international plumbing firm," said a systems engineer. "Or what about a carpenter not being able to hammer in a nail as 'hammering' had been patented by a large international carpentry firm. Make no mistake, when things as elementary as a progress bar can be patented, we ARE talking about this level of impact for small to medium business that are unable to afford to play the patent game. What's worse is that if this IS passed, any one piece of software may well cross over dozens of patented ideas." Despite this, there was some support for the idea — well actually, one reader: "Software patents are long overdue," said Martin Ryan, marketing director of DB Consulting. "The reason the US has such a healthy software industry is in part due to the protection that patents afford companies who invest in software production. Creating software is a labour intensive (and therefore expensive) process and it is right that companies that invest in it can protect that investment during the life of a patent, just as a company investing in any other area of industry can gain the right to fully exploit the results of their work."

This sparked angry reaction "Mr Martin Ryan, before claiming the US and Japan have a "healthy" software industry, please take a look at all the lawsuits involving software patents," said CD, pointing to a recent case. "These things pop up on a daily basis right now: do we really want this in Europe? I guess somebody does, and they do NOT understand what this is all about, because no person who REALLY understands what this is all about would even consider putting this on the agenda."

"The sheer ignorance of using US patent protection and the word 'healthy' in the same sentence is repulsive," said Marcus Widerburg, "Seriously, I dont think anyone in the software industry with any insight would think this, which is why 'DB Consulting' must be a law firm."

Strangely, it was a patent attorney, James Cross, who sounded a note of hope. "Let's not get overexcited — all this means is that the text proposed by the European Council will be passed over to the European Parliament for the next round of debate," he said. "The Directive is still very far from being adopted." If the directive is adopted, it is likely to result in increased interest — and hostility to — the European Union. "Until yesterday I was inclined to vote in favour for the European constitution in the upcoming Dutch referendum," said Jan Mulder, one among several who have turned Euro-sceptic. "Today, realising the foolishness of my naive confidence in European democracy, I am sure to vote against it and to convince as many people as possible to do likewise!"

"I've always wished for a closer Union across Europe. But I won't support an undemocratic one," said Ricardo Botelho de Sousa.

In the end, one reader summed up the mood as follows: "I think I'll quit. Maybe I'll retrain as lumberjack."

Topic: Government UK

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  • Despair is an understatement. Is the software patent bill just the tip of the iceberg? What other laws have been pushed through in the interest of the few?

    The realisation that Europe is a beauracracy, not a democracy is what is causing me the most despair at the moment.
  • Well the situation isn't too bad yet: the Eurocrats don't wear military uniforms and mirror shades when they're dictating their instructions to the Parliament., they haven't called for the assistance of the CIA to deal with the FFII communists yet and I'm sure there's nothing unsavoury in Charlie McCreevy's fridge.
  • I understand that most of your readers and staff are open software advocates that dislike proprietary software but I don't have a clear understanding of the alternative you are proposing to software patents. If a person or company invents a truly new piece of software (or any other product), what alternative are you proposing to patents to prevent others from copying the idea (without violating the copyright) and stealing the benefit of the original invention? If there is no benefit to be had, what incentive is there for the inventor to invest resources to create something new? What alternative are you proposing to protect the small inventor? If you will pardon an American colloquillism, you appear to be throwing out the baby with the bath water (or was that originally British?).
  • It wouldn't be so bad if:

    1. Only ideas that were not in existence before the bill would be allowable - any evidence of previous use would render the application void.

    2. Only 'non-obvious' ideas should be allowed.
  • It is a mistake to associate the opposition to software patents exclusively or even predominantly with open source advocacy. In fact small software development and service businesses (and many primarily non-software businesses) are among those who stand to lose the most and are most at risk:

    "If there is no benefit to be had, what incentive is there for the inventor to invest resources to create something new?"

    The necessity to innovate to compete effectively did very well for the software industry, long before software patents cast their ugly shadow over the field and it still does. The profit from the sale of competetive products and services is hardly a disincentive to innovate and patents are simply not necessary to incentivise software innovation as they may be in the pharmaceutical industry for example.

    "What alternative are you proposing to protect the small inventor?"

    Software is not - for the most part - invented, it is designed, cobbled together and authored. Those inventions which even many software developers would regard as worthy of patent protection are few and far between. Companies that acquire many thousands of software patents each year are not contributing to some extraordinary renaissance in a moribund technology and industry - they are simply using the perversion of the patent system by the extension of it's scope to the intangible and abstract in order to distort the market in their favour.

    The patent system is not a rewards system for brainy but idle software developers, nor is it an arsenal for "IP companies" and companies such as Nokia, whose IPR chief, Ilkka Rahnasto wishes to use them as "[instruments] for controlling the activities of other companies" and who see patents as principal sources of revenue in themselves. It is a very blunt macro-economic tool to be applied only to fields of technology in which it can be shown that progress would otherwise be impeded.
  • Thanks for the coverage!
    The council musn't get away ignoring the EU citizens, european companies' interests, denying the parliament's request, and not even playing by its own rules (rushing a A item when Denmark, Poland and others were opposing it).

    They're unelected, they're playing dirty, let them get due credit for it.
  • The US does not have a healthy software market. It has one giant firm to which practically everyone else pays homage, a smattering of other largeish firms, and a gazillion small developers in there try to avoid getting stepped on.

    Patent ownership is a game only people with big money can win: ie, Microsoft, Apple, IBM, Sun, Novell and a handful of others. The collateral damage, whether through intimidation or lawsuit, is everyone else: those invaluable smaller players and the customers whose options are being invisibly narrowed.

    The short story is that software patents turn software development into even more of a minefield than it is, crippling the software industry by turning it into a slap-down game for patent sharks instead of a market based on value supplied to the customer by technical experts.

    Europe probably doesn't want to do that - with the conspicuous exception of a few larger industrial players would would rather have a larger-looking slice of a small pie than a smaller-looking (but actually bigger) slice of a huge pie. Look to these short-sighted people for the motivation behind this move.
  • Vaughn: FOSS has a terrifying defence: the typical FOSS developer is not worth suing. If a project is buried in lawyers in the US or EU, expect to see it pop up again in Argentina, Korea or Zimbabwe within hours to days - and expect to see a new martyr made, more goodwill burned by the attacker. Face the fact that patents have gone haywire, have already become a weapon only useful to the rich and powerful. It's too late. They're gone in the USA and being railroaded through the EU as we speak. It's obvious that due procedure is being bypassed left and right and that as usual where big money is involved, the law is an ass. Now ask yourself this question: what protection does a small closed-source developer have against patents wielded by a predatory giant? My answer is; none. None at all. Your only escape is to stop being a closed-source developer. The alternatives are: become an open-source developer or shut down. Start organising now. If you're going to shut down, please throw your code at SourceForge first so that at least it may live after your company dies.
  • To the Management Consultant (Vaughn):

    (Or anyone else who thinks they can answer)

    Please give me an example of a company or person who has "invented" a truly new piece of software which deserves patent protection...

    Please describe what feature or other aspect of this miraculous world-changing software deserves protection from copying - is it the colors used in the menu? An algorithm used which was originally published by Kernigan or Ritchie in the 70's? Maybe the function itself such as 'Partitioning of a hard drive in an automated fashion'?

    Then please go on to describe how innovation is enhanced (that's supposed to be the whole idea) by the rest of the world not being able to use anything similar for the next, what, 25? 50? 100 years?

    What about an incentive for the now eternally patent-protected developer to make enhancements? Yeah, I didn't think so...
  • To Vaughn Frick.

    Software patents would be like allowing top soccer clubs to patent "their" moves, concepts and tactics (can I have a patent for 4-2-4 please?). What should matter is how well you execute those moves, concepts and tactics and thus stay ahead in the game and come out on top. As long as you manage to achieve that you can stay on top but as soon as you allow your opponents to outperform you (within the rules of the game) your position on the ladder will drop.

    Now, should we allow any soccer player that invents something new to stay the one and only that may profit from that invention? Or would we rather see that all the professionals adopt that new invention to see how much overall gameplay will benefit from it so we all can enjoy it? And, as a side note, how hard should we come down on clubs that don't play by the rules (e.g.: bribe referees) because in IT land we seem to allow such clubs to stay world champion and not even slap them on the risk.

    I'm sure there are soccer team owners out there who would love to patent soccer things but I think you would agree that that would be the beginning of the end of soccer as a top sport. Not to mention being the last ones in the world series because the players from other countries won't be crippled by clueless soccer patents.

    Now the above isn't an example that relates to software patents exactly but might provide you with a clue as to why software patents are a bad thing.

    So to answer your question: there is no need to have an alternative for software patents because software patents shouldn't exist in the first place.
  • You seem to have focused on "big business" suppressing the ability of the small entrepreneur to enter their markets. There is another aspect of the discussion that you are not addressing. What about the small businessman that makes what (to them) is a huge investment in time and resources to develop a new software product? Without patent protection, as soon as the existence is made public, "big business" can overwhelm the originator with superior resources including huge sales and marketing campaigns. A small business person would not even be able to recoup their development costs before they were driven out of business. Software patents are a double-edged sword. They can be used as a barrier to entry by both large and small. By eliminating them, you are "throwing out the baby with the bath water" if you will pardon an American phrase. I agree that there is potential for abuse but you also have to protect the small inventor just as you would in any other profession. Eliminating all patent protection simply because the product is made with bits as opposed to plastic and steel is not the solution.
  • To the anonymous person that requested examples...

    Are you familiar with the phrase "Catch-22"? (It's a great book if you haven't read it.)

    I do have examples but I can't disclose them because they are not yet afforded patent protection. How is that for irony? In my case, the patents will be on an overall process as opposed to a specific incarnation in code but if software patents are eliminated, why wouldn't process patents be next.

    In my case, I have invested years and over US$1 million in resources to develop something that could be crushed by a large multinational were it not for patent protection. How could I recoup that investment if the idea were not patent protected?

    If I invent a carburetor, I don't have a problem being supplanted by the guy that creates fuel injection. I do have a problem with the guy that markets a copy of my carburetor in a different color and sells them at a loss until I am out of business. The same logic should apply to software.
  • P. L. Hayes - You make some good points. I should not have associated open source and opposition to patent protection. They are often linked but they are actuall separate concepts.

    Regarding your comment "The necessity to innovate to compete effectively did very well for the software industry, long before software patents cast their ugly shadow over the field and it still does", I beg to differ. In 1979, I was part of a team that developed the first CASE tool. CASE is Computer-Aided Software Engineering as in graphical design representation and code generation. In today's equivalents, think the Rational division of IBM. Because there was no software patent protection, that company struggled for years but was eventually buried by superior resources of other companies that copied the product. The original developers of the product received virtually none of the benefit of their work. It wasn't working then. I would argue that it is working better now but obviously the existing system is open to abuse as many have pointed out in response to my original post.

    Regarding your comment "Software is not - for the most part - invented, it is designed, cobbled together and authored. " Unfortunately I must agree. Most of it isn't even designed. Even further, I would agree that most software does not deserve patent protection. But what about software that truly is invented? Do you not allow patent protection for that because patent issuers have difficulty separating the wheat from the chaff? While we need to do more to eliminate abuse of the patent system, patents do serve a valuable purpose as they have in other industries in the past.
  • "Because there was no software patent protection, that company struggled for years but was eventually buried by superior resources of other companies that copied the product."

    Fine, but even if a lack of software patent protection really was the sole or major cause of one company's demise, I was of course referring to the patent free and explosive growth of the software field(s) and industry(ies) as a whole over the last several decades. The existence of some three-legged dogs does not mean that dogs are three-legged animals, and it is flying in the face of historical fact to suggest that software patents have been a welcome fix for a broken industry plagued by market failure. Microsoft had only five patents before 1991, Oracle had none until 1995. Innovative companies such as Adobe, Autodesk and Cisco have testified that if they have acquired software patents in recent years, it has been because they have had to, as a (partial) defence against other software patent holders. It is easy and tempting (and encouraged by patent professionals) to count potential assets in one's own patents but forget to count potential liabilities in the patents held by others.

    Anecdotes aside, and more to the point, there is no empirical evidence that software patents have achieved what the economists tell us they must achieve in order to be justifiable in the first place, no theoretical reason to expect that they would do so anyway, and increasing evidence that they have in fact had just the opposite effect.
  • Your analogy breaks down when you get to cost of development. For a soccer club, developing a new move happens as a matter of course. Suppose that the cost of developing a software product far exceeds the cost that could be borne by any single customer (or even the first 20 for argument's sake). If there is no patent protection on the business process or its implementation in software, as soon as it hits the street it can be copied by someone that has lower design costs. If they already have deeper pockets, they can outspend the small company on marketing and sales and bury them. I already had that happen earlier in my career on an unprotected product at a software startup. There has to be a way to generate license fees commensurate with development costs or the original innovation costs can ony be borne by the larger companies. I know that is not your intent but you are cutting the small player out of the game. Going "open source" won't provide a revenue stream unless you want to go into the services business instead of the software business.