UK tech lobbyists call for software patents

UK tech lobbyists call for software patents

Summary: The SME Innovation Group, which represents small technology development businesses in the UK, has attacked Ian Hargreaves's IP review for arguing against software patents

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TOPICS: Legal, Piracy
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The UK does not have a viable software industry because it is too restrictive about what code can be patented, according to a lobbying group for small technology businesses.

Ian Hargreaves

Ian Hargreaves responded to calls from business lobbyists for tougher patent enforcement at the Westminster Legal Forum on Tuesday. Photo credit: David Meyer

John Mitchell, the chairman of the SME Innovation Alliance, told a Westminster Legal Forum audience on Tuesday that "we don't have a software industry because the UK Intellectual Property Office is out of line with the rest of Europe".

The UK will only grant software patents if they solve a particular technical problem, while it denies those that have a general-purpose use, such as a word-processing application. By comparison, the European Patent Office (EPO) is a little more relaxed, in that it allows patents for computer programs themselves.

If you don't have a patent system to protect your software industry, you're not going to have a software industry. How much more evidence do you need?

– John Mitchell, SME Innovation Alliance

"We need to recognise that software is a material — you can make inventions from that material," Mitchell said at the event, held to discuss the recent Hargreaves report into intellectual property law. "It's like wood, it's like paper, so why have some artificial limitation?"

Mitchell complained that "hardly anyone" submitted evidence to Ian Hargreaves before he published the report. The report called for the UK to resist allowing software patents in order to avoid "thickets" of patents building up around commonly-used technology.

"[Hargreaves] seems not to have noticed that quite a lot of SMEs who did respond said there's no UK system in place for patent enforcement. In the G8, this is the only country that has no penalties in place for patent infringement," Mitchell said.

"If you don't have a patent system to protect your software industry, you're not going to have a software industry. How much more evidence do you need?" he asked.

Hargreaves report

In fact, Hargreaves's Digital Opportunity (PDF) report went as far as to suggest that the UK government should lean on the EPO to get it to tighten up its criteria for software patentability.

Read this

UK must modernise copyright laws, report urges

The UK needs to modernise its intellectual property laws in order to stimulate innovation and growth, a report by journalism professor Ian Hargreaves has recommended.

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At the event in Westminster, Hargreaves told ZDNet UK that evidence given to his review showed "no great sway of opinion saying we must have software patents".

"There is not sufficient evidence that instituting software patents would bring benefits to innovation and the economy, but there is evidence on both sides," Hargreaves said. He noted that some large US companies are keen to move away from that country's pro software-patent stance "because technology moves so fast, so they're not an effective way of protecting your intellectual property".

"Most companies believe secrecy and moving fast are better routes than spending years to get patents," he added.

According to intellectual property lawyer Trevor Cook, of the law firm Bird & Bird, the Intellectual Property Office (IPO) is in "a rather unfortunate situation" as it is "stuck with some old [UK] case law which is based on some older EPO case law, and has not been able to move along with the EPO approach". He said the EPO approach was now more in line with attitudes in the US, Korea and Japan.

I worry that if we are too much out of step with the rest of the world, it cannot be good for our industry

– Trevor Cook, IP lawyer

"I worry that if we are too much out of step with the rest of the world, it cannot be good for our industry, especially if you think that a lot of the inventions we do produce are embodied in software," Cook said.

However, Cook also noted that software patents are sometimes troublesome because of the occasional difficulty in proving 'prior art' — the legal term used to describe things that have been done before. "The problem with the software industry is a lot of prior art consists of old computer manuals that people have thrown away, and never made it onto the internet," he said.

The government is due to give its response to the Hargreaves review before the summer recess, which begins in mid-July.


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Topics: Legal, Piracy

David Meyer

About David Meyer

David Meyer is a freelance technology journalist. He fell into journalism when he realised his musical career wouldn't pay the bills. David's main focus is on communications, as well as internet technologies, regulation and mobile devices.

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13 comments
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  • Software patents in the UK would be a disaster. I don't understand how these small businesses don't realise that they'd be ultimately screwed over by then. Every piece of software is made up of hundreds of small pieces of inspiration, and if any of them could be patented it would immediately bring a huge liability for any software business. Software isn't pharmaceutical design, there isn't usually a large sunk research cost that patents are designed to reward, and software has innovated extremely well and rapidly without them.

    I believe the majority of software patents are obvious to an expert, but if you are hit with 100 patent violations then the cost of defending and demonstrating that they're obvious will be prohibitive and risky to all but the largest of companies.

    Software patents are bad for business, and the only people who want them are patent lawyers.
    caramelcarrot
  • Although I am now retired, I have had a long history in the Software industry and my credentials can be found at http://en.wikipedia.org/wiki/Martin_Goetz

    Back in 2009 and 2010 I wrote two articles that were published in Patently-O, a well recognized Patent blog in the US.

    It is unfortunate that Business Method Patents cloud the issue for true inventions that are implemented in software. But while the majority of the world is against “software Patents”, those in the software industry that truly invent should have the same protection that is afforded inventors in the computer hardware industry.

    Below are links to those two articles

    In Defense of Software Patents
    http://www.patentlyo.com/patent/2009/11/in-defense-of-software-patents-1.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+typepad%2FANlN+%28Dennis+Crouch%27s+Patently-O%29


    IN DEFENSE OF SOFTWARE PATENTS - PART 2
    http://www.patentlyo.com/patent/2010/09/in-defense-of-software-patents-part-2.htm

    Marty Goetz
    Martyg-ec49b
  • Patents are a plague in the technology field, especially now that people who cannot really invent may buy patents and troll for license fees over something they had little hand in. One only needs to look at the sad state of affairs in the US to realize this.

    All pure software can be stated in mathematical terms, rendering them non-patentable.

    In addition, reading Mr Goetz's biography, his campaign against free software could be seen as antithetical to the principle of Open Source software which runs the majority of servers and internet applications, and even Android phones. To foist his principles on an area which advances far and rapidly because of its freedom would be a disaster,
    persephone-7215e
  • Whatever differences there are between the UK and the European Patent Office, both institutions seem to be striving towards the same goal: to give patent protection where it is justified, irrespective of whether the invention involves the use of software. All contributors to this debate bar one seem to agree that pure software patents are undesirable: Mr Mitchell seems (going by what he's quoted as saying) either to be arguing for patentability of wood and paper, which I don't imagine is what he meant, or for allowing patents to be granted for inventions which use software (as other inventions use wood or paper), which I don't think anyone here, including Prog Hargreaves, would argue against. I am not a patent lawyer who wants wider patents for software: I am an IP lawyer profoundly depressed at the way intellectual property has suffered from hyper-inflation, trollery and bullying by large IP owners. I cannot believe that more of the same could possibly assist SMEs, who would have to incur massive searching costs and pay huge insurance premiums or lawyers' bills as a result: the IP system gets more and more like a tax on business every day.
    As Persephone says, pure software is just mathematics and cannot, must not, be patentable. But that's not to say that the software might not implement an invention that should be patented. It's a matter of defining where that boundary lies. The open source model shows that strong IP protection is not the only way to encourage innovation - which is why I am astonished at what the Hargreaves Review says about the subject: precisely nothing. (OK, one incidental mention, in a footnote, quoting a US Social Science Research Council report).
    anonymous
  • Thank you Peter for mentioning my comments.

    However I state that inventions including software should only be patentable when the substantive part of the invention is not software. Software patents in the US have effectively got in through the backdoor by describing the operation of the software within some hardware e.g a computer consisting of memory, fixed storage e.g. disks etc - i.e. all components of a general everyday laptop, desktop, server or even mobile phone. Further, it seems that many patents are speculative ideas, and one solution to this should be that a patent is only granted to inventors who submit a working model of their invention with their application.

    Extending the issues further, the Hargreaves report also considered copyright; it would be definitely simplify matters if copyright terms were dramatically reduced to a period of 15-20 years, but with extensions permitted for an increasingly substantial price e.g a doubling of cost for every 5 year term. In this way, the general populace would be free to incorporate and adapt old material in their new works without worrying whether some item from the 1930s is going to hit them on the head. Copyright and IP seems to be regarded as some sort of pension for producers of works, when it ought to be seen for what it is; a limited term monopoly granted by a government in exchange for full disclosure in order to get ideas widely known and distributed. IP laws should be there to encourage innovation, not stagnation and accumulation.

    I am not against patents altogether; for example it seems to take huge sums of money and patience for drugs to be approved for use as medicines, and patents to protect these ideas seem the only way of ensuring innovation in this field. Software however, gets on just fine without them.
    persephone-7215e
  • No, we do *not* need software patents in the UK. We have a thriving software industry already, let's keep it that way. Patents on software are widely acknowledged in the US tech industry to be a hindrance to business, not an aid. The only reason that people continue to play this game is to keep up - you have to have your own defensive portfolio when you're threatened. And since the advent of the patent trolls even that isn't enough! The SMEs have *nothing* to gain by joining this arms race.

    Software is already adequately covered by copyrights. It seems the only people who are seriously calling for them are those with most to gain: the lawyers.
    sledge-ea4f6
  • But with software patents, we could also have a thriving "patent troll" industry! Wouldn't that be nice? (If you're a patent lawyer, anyway...)
    Zogg
  • I think we are in agreement about what should be patentable - if the software produces a technical effect. Which is to say that it's not a software patent at all, it's a patent for a new development that might be implemented by software. As for copyright, I think the thing to do is raise the threshold of originality - for software it should be the author's own intellectual creation anyway - rather than cut the term of protection (but please no increases!). That is compatible with EU obligations too.
    anonymous
  • > The UK does not have a viable software industry because it is too restrictive about what code can be patented ..

    Code can be copyrighted, what can't be patented is methods and algorithms, else we end up like the system in the US where someone can come along and patent any and all methods of virus scanning. Do we seriously need such am 'innovative' patent system as is current in the US? ..

    http://www.groklaw.net/article.php?story=20110613091958268

    See also .. Lodsys v. Apple customers, Nokia v. Apple, Skyhook Wireless v. Google, Paul Allen v. the entire Internet ... etc.
    doperative
  • With reference to doperative's comment, the US Lodsys case(s) are a perfect example of why SMEs voting for software patents is like turkeys voting for Christmas. Small developers are being sent demands for Lodsys "invention" when Apple has already taken out a license. Defending themselves will cost these developers/ SMEs large sums of money with high risk and there is therefore great temptation to feed the patent troll.
    persephone-7215e
  • re: turkeys voting for Christmas ..

    Nice one ..

    > Small developers are being sent demands for Lodsys "invention" when Apple has already taken out a license ..

    And what Apple's gets from the Lodsys 'patent` is the ability of the end users to click on an ICON in a running APP to execute an online purchase. How is software patents going to protect 'SME Innovation Alliance` members from such issues?

    this just in ...

    "Go Daddy sued over email alerts"

    http://www.theregister.co.uk/2011/06/15/go_daddy_email_alerts/
    doperative
  • Some good points about S/W patents ... and Trolls.
    However, the most noteworthy part of the article, is where Hargreaves cites, in defence of his position on S/W patents (wanting to stear away from them) the fact that 'some large US companies' are looking to move away from them. This speaks volumes in terms of where his priorities lie (Large Companies must be right, right?). This is the problematic attitude that lies at the heart of the Patent Industry. It's as bad with hardware (although that can be patent 'protected'). Hargreaves has clearly neglected to take account of the fact (although he mentions it in his report) that SME IP holders and innovators are what drive wealth creation from IP. So why does the IP system fail to protect them? I suggest Software SMEs wait until the patent system in the UK at least begins to make sense for hardware, before they join the party.
    But on the substantive, it is surely unarguable that if a S/W can be shown to be inventive, it should not be afforded the same (albeit presently inadequate) protection as H/W.
    smeinentive
  • I would think that one major element hindering the growth of UK software patents is cost, plain and simple. It costs much more to obtain patent protection in Europe than in the U.S.; and, considering how quickly computer technology becomes outdated, it seems to me that many developers likely opt out of patenting their products because such expensive IP protection fails a cost-benefit analysis test.
    http://www.generalpatent.com/media/videos/learn-more-about-general-patent-corporation
    Gena777