Patent nonsense: the case for unfettered development

Patent nonsense: the case for unfettered development

Summary: Anti-software patent campaigners unpick the implications of a proposed EU directive to strengthen existing patent legislation


The Computer Implemented Inventions Directive (CIID) has caused considerable controversy ever since it started passing through the corridors of the European Union in 2002. But understanding the directive, the legislative processes involved and the consequences for the software industry is a mind boggling task.

Let's be clear about what we mean by software patents. The argument revolves around the question of whether or not we should be able to patent physical inventions that use software -- such as a car braking system -- and whether or not we should be able to patent software itself. Most anti-patent groups accept that the former should be patentable, whilst the latter shouldn't. For small and medium enterprises (SMEs), who make up the majority of the industry, patents on pure software would be a disaster. But for some big businesses they are a lucrative prize.

Consider the implications for a moment. Software ideas as trivial as converting Windows 95 filenames to Windows NT filenames are being patented in the EU already. If the CIID passes through and legalises these software patents, every business would need to hire lawyers to track patents to avoid infringement. But this would be a near-impossible task given the number and trivial nature of so many patents -- imagine trying to write software without a progress bar, menu tabs or certain kinds of multitasking! Avoiding this will represent an unnecessary distraction from the business of writing software, which is already lucratively protected by copyright law.

If legalised, it will be practically impossible for developers to avoid software patent infringement. The alternative is to build a defensive portfolio of software patents, so that if a big business accuses you of infringement you can negotiate your way out of expensive legal procedures with cross-licensing deals. These costs, however, would inevitably be passed onto the consumer.

Companies like Acacia Research who "develop, acquire and license" software patents will prosper without ever writing a line of code. They could sue for infringement on software they never invented, and would be immune from countersuits.

Patents, or state-granted monopolies, were originally introduced to protect physical inventions; they are not suitable for ideas, mathematical algorithms or code. Big business and patent portfolio companies, would effectively be able to stifle competition and innovation in the SME sector. According to research by the Green-EFA group, a parliamentary group made up of the Greens and the European Free Alliance, 43 percent of all the software patents currently registered are owned by only 50 companies, most of which are American or Asian.

'I was a software developer'
Photo Credit: FFII

Topic: Apps

Edward Griffith Jones

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  • Interesting article (besides the ones that can be read by clicking on the links here above):

    The war on copyright communists,,1387447,00.html
  • European Software Patent Horror Gallery

    European Software Patents: Assorted Examples
  • Freedom to use ideas in software without restriction was enshrined in the Patents Act 1977. Is there really such a shortage of ideas that a few large companies now need to be given monopoly rights to ideas which any competent programmer could think of for themselves? Where is the public interest in this restrictive practice?

    I think the Patent Office, who are promoting the extension of patents into software, should be asked to give their estimate of the damage this will cause to the British economy. Giving a right to one person evevitably means that the legitimate interests of many others will be damaged.

    The Patent Office say that their proposal would limit software patents to those that "make a technical contribution". They are holding meetings across the country in a couple of weeks time to try to find a definition of what this means. In my opinion this is nonsense. Patents should be limited to products where the manufacturer has to invest a significant ammount of money in the manufacturing process in order for the public to benefit from the idea. This is not the case with software.