EU Patent Shenanigans

It’s a widely held opinion in the IT industry that software patents are a very bad thing. This website describes exactly why software patents are such a ridiculous concept, using a Webshop Example to illustrate how a seemingly innocuous ecommerce website infringes on no fewer than 20 software patents.

Software patents are fundamentally about everything which patents originally weren’t about. Patents were originally for individuals, inventors, who wanted to protect their new invention (e.g. the sadly mythical Thomas Crapper Valveless Water-Waste Preventer) from the evil copycat claws of Big Business. Patents are having less and less to do with actual innovation, and more to do with the blocking of market segments. Software patents especially are being used by Big Businesses as a sort of land-grabbing exercise, staking out their territories in the finite software landscape. If you have a problem which you need to solve in software, you analyze the problem and (usually) end up with an elegant algorithm, a program, which solves the problem. You might choose to use JavaBeans, use a Decorator pattern, whatever. But the chances are that you’ll inadvertently write a small chunk of code which has already been patented.

There are distinctions between patenting actual code – a concrete algorithm – and a software “technique”, which may be implemented by writing your own code. Software patents naturally also cover the user interface and various aspects of user interaction – as Microsoft discovered when they were sued for offering the ability to download IE plug-ins via IE. So it’s all quite a murky, grey area just waiting for expensive lawsuits between Big Businesses and (occasionally) Little HaveAGos to define, one patent at a time, what can be patented and what “clearly” can’t.

Meanwhile, the European Patent Office has in the past issued patents on accepting payments by credit card, and even a patent on the humble progress bar.

A key vote on the European Directive on Computer Implemented Inventions yesterday threatens to make the murky grey area even greyer and murkier.

A number of proposed amendments to the Directive were rejected by the EU’s legal affairs committee, a major blow to opponents of software patents in the EU.

In some ways, the proposed amendments to EU patent law will make technical patents easier to define, e.g. they’ve provided a definition of “technical”: “belonging to a field of technology”, and a field of technology has been defined as “a field of applied natural science”. In theory, this amendment should rule out patents on business methods and maths – which really should cover software patents. However, a crucial section of the directive remains in force, meaning that only source code is excluded: “pure software inventions” can still be patented.

Free Software advocate/guru/pioneer Richard Stallman says of the looming EU directive: “If patent law had been applied to novels in the 1880s, great books would not have been written. If the EU applies it to software, every computer user will be restricted.”

About the Author

Matt Stephens is a senior architect, programmer and project leader based in Central London. He co-wrote Agile Development with ICONIX Process, Extreme Programming Refactored, and Use Case Driven Object Modeling with UML - Theory and Practice.

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