Software patents: 'A really bad idea'

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.

What problems do you see with software patents exactly?
First of all, there is not really any fair defence to patents the way there is to copyright law. And a lot of times the patents are granted for things that are pretty obvious. Amazon's One-Click feature is something that is pretty obvious and intuitive to a lot of people. To grant a patent on the likes of that devalues the whole system. It goes too far.

What is causing this?
The cause comes from the large commercial interests pushing this agenda -- the large software companies like Microsoft who have a lot of capital, a lot of money. They stand to gain quite a lot by the passage of these types of directive. Legislators all over the world pay attention to money, and when you have deep pockets funding this effort you can expect to see a lot of bad laws passed. The software industry has very deep pockets.

And what about the role of the patent offices? What do you see them doing wrong?
There are a lot of problems with patent offices. In the US they are very often paid by the number of patents they handle so there is a large incentive to get a patent approved and move on to the next one. There is an incredible workload due to the demand, but because they have granted too many frivolous patents they have created the workload for themselves, because everyone wants one [frivolous patent]. These offices are getting larger funding, getting greater funding, and so the business itself is growing.

What do you think about what is happening in Europe?
Europe is going the wrong way, just following what the US has done. We have created a huge mess in the US with our laws, and for other countries to follow down the same path makes very little sense judging from the harm we have seen. Europeans and others should be wise to learn from the mistakes the US has made.

But the pressure is from many quarters: Hollywood, the recording industry -- all are powerful interests who have an agenda to push US laws oversees. It is the interest of a very few large corporations, to the detriment of everybody else. It is politicians looking for campaign contributions; then, when they draw up laws, they look to the people who gave them money.

What can we do about this?
Small developers and companies should fight very hard against these laws. They are not a fait accompli, and if there is enough outcry from public and businesses there is a good chance that Europe will not go in this direction. The challenge is to educate the lawmakers, business leaders and general public about the harm we have experienced.