There has been a trend in recent years, led by the European Patent Office, to grant people patents of what is, effectively, pure computing code. In the initial European leglislation in the 1970s this was specifically outlawed, however in the time since the lawyers have managed to get around this restiction. This has very significant implications, particularly due to two factors:

• In law patents pertain to a concept while Copyright pertains to content. Thus the holder of a patent has the power to restrict people's use of a particular concept even if they come up with the same concept independently five minutes later. While Copyright would stop the person from copying the original person's implementation of the idea, patenting stops them implementing the idea at all.
• Software patents are being granted for concepts which have involved very little labour at all (`two days work'). Thus, on the basis, of very little input a person can hold the software industry to ransom because they happen to have thought up the best way of solving a particular problem first. Or, more pertinently, they took out the patent first. This distinguishes software from, say, pharmaceuticals where massive R&D investment may be required, in time and money, before a patent can be taken out.

The Implications

The speaker outlined three ways in which the granting of patents is having a negative effect on the software industry:

• It's bad for small business. Software developers now have to be very wary of infringing on other people's patented code. Due to the sheer volume of patents that have been granted being sure of this is very difficult. Inevitably businesses have to divert money from development to legals, in case they are sued for inadvertently trespassing on someone's patents. Conversely holders of patents have a significant legal problem as well - they have to prove that people are using their concept before they get compensation. This is different from in the Copyright situation where they must prove that content has been violated rather than the more nebulous notion of a concept. The only winners are the big software corporations with the big lawyers.
• It's bad for innovation. Apart from the fact that businesses are spending more on lawyers, patents potentially lock business in to, or out of, a particular implementation for a particular problem. Changes to any implementation have significant legal implications which may be too much for a programmer to face.
• It's bad for the open source community. The open source community are the group least likely to be granted software patents, and the group least likely to be able to afford them. They will potentially be locked out from fundamental computing developments, and may be suffocated out of existence.

Note: In the discussion which followed the speakers, mention was made of Copyrights. For the purposes of this article it is sufficient to say that Copyright may not be the required alternative to patents. The European Parliament recently significantly strengthened the power of Copyright and the implications of this may be as negative as that of patents.

The current situation

At this stage the granting of patents on software is a trend. However the European Parliament and the European Commission are currently considering legislation which is designed to outline the official position of the EU on patents. Thus, this trend may be stopped in its tracks or, alternatively, it may be given a more sound legal basis and the patents may be granted more freely.

The process of approving this legislation involves interaction between the two bodies of Parliament and Commission. The most recent decision was by the Commission (What is the Commission?) which has decided to allow patents to be granted more widely.

One particular aspect of their decision is that `interoperability' has been undermined. They want to allow software-developers to take out patents which prevent other groups from producing applications which can interact with their system. This is very good for groups which dominate the market. Potentially, Microsoft could take out a patent preventing others from writing competing word processors which can read or write in the Microsoft Word format. This would be a significant problem for free software / open source projects such as http://www.openoffice.org.

There are other problems with their decision but this gives an idea of what the mindset of the Commission is. The parliament now has the opportunity to seek some sort of compromise with the Commission which could, potentially, water down their more draconian measures. The Liberal Democrat MEP in attendance at the forum summed up their dilemma: Do they seek to compromise with the Commission, thereby allowing patents to be granted widely but, maybe, not as widely as the Commission would like? Or do they seek to reject the Commissions proposals altogether, thereby allowing the current trend of granting patents to continue? Hmmm, problem.

Of the three MEP candidates who spoke, the Liberal Democrat, Andrew Duff, seemed to have the greatest understanding of the issue - maybe because he is a sitting MEP at the moment. He seemed aware of the limitations of his position - he certainly can't sort out the patents problem himself so needs to act strategically. On the down side he didn't seem, to me at least, to be completely unequivocal in his opposition to patents which is a worry. The Green candidate, Margaret Wright, on the other hand was more unequivocal but, potentially, less au fait with the political forces which she would need to harness to be most effective on this issue. Finally, the Conservative candidate, whose name I didn't catch, didn't seem to take any position whatsoever on the issue. I remain in the dark as to what he would do if elected.

Conclusion

Perhaps the most telling comment of all was made by the Green candidate when she said words to the effect that: "Strangely, the usual advocates of `free trade' are the ones voting for stronger patents and more restriction while those who would normally oppose the forces of globalisation and the free market want the restrictions to be decreased."

Of course, this is not strange at all. `Free trade' proponents, in this situation, as in many others, are not really advocates of free trade at all. They are advocates of the prevailing hegemony. They seek to maintain the position of power that the large corporations have achieved at the expense of the innovation and creativity of smaller players. And at the expense of justice.

It seems to me, having attended this forum, that the issue of software patents fits into this analysis very precisely. Software patents threaten innovation and creativity and they are unjust. We should do our best to oppose them.

[Background Information on Patents] [All previous Indymedia UK coverage]