Software Patents

I've been interested to learn about the "menace" that is currently threatening the IT world in the EU: Software Patents. As part of one of my modules "Professional Issues in Software Engineering" I had to write a 2000 word essay on the subject, which I have just finished. I found it utterly fascinating, I can honestly say it is the first essay I have actually enjoyed writing; I hope to score well with it.

So what was my conclusion? "Patents are evil, cast down the evil ones and smite then with the hammer of open ideas and the sword of free thought exchange"? No. I'm actually not bothered about the change in the EU ligislation because, and this is the point that people seem to be missing in this whole sordid affair, it is not a law on software patents. In fact the law continues to expressly forbid them. What it does say, however, is that inventors who have created a "technical effect" by way of an "inventive step" that is implemented "not wholly" in Software may be granted a patent.

And that, to me, seems perfectly reasonable. Say Joe Bloggs develops a fantastic new way of welding car bodywork. Clearly he stands to make a lot of money from this; car manufacturers will be biting his hand off to get at this new technology. Joe Bloggs must, of course, protect his invention with a patent. Otherwise the car manufacturers could just see how he does it and make their own version of the same technology. Joe Bloggs would then get nothing for his genius.

That is fair, yes? But what, then, if - as part of his brilliant new welding system he uses some clever software? Under the current legislation he is not, technically, allowed to patent and therefore protect the work that he did in software: Only the hardware. This could put his work at risk. That is not fair. And it would seem that the EU agree with me here, because they have already granted thousands of patents to protect inventions like this.

So while the law appears to forbid the granting of patents on software, the EU itself clearly are allowing patents that exist "not wholly" in software, and case law upholds these patents. This is a huge ambiguity in the law, and so something needed to be done to fix it.

Enter, stage left, the draft directive for the amendment of the patent law. The draft directive still forbids the granting of software patents, but allows the granting of patents that will protect people like Joe Bloggs above. At the moment more than 50% of the existing software patents in Europe belong to multinational companies, who are well versed in patents and who can afford to hire expensive lawyers to defend their patents if they are challenged. The draft directive will create a more level playing field so that the smaller companies and ordinary people will know what they can and cannot patent, and what will and will not be upheld in a court of law.

So it would seem that a lot of the worries of the average person regarding software patents are unfounded. As an advocate of the open source/freeware community I stand to lose a lot from "a law on ideas" such as that which can be found in the USA, but I can not find anything in the proposed law on patents that could cause this. I agree wholly that any law on software patents would have to be worded extremely carefully to avoid multinationals like Micro$oft from exploiting it, but I think that what the EU are doing at the moment is in the best interests of inventors.