June 9, 2004

U.S. to EU on software patents: 'We sold out, you should too'

Author: Robin 'Roblimo' Miller

European free software advocates, Green Party activists, Socialists, economists, small business owners, and other radicals are working to keep the European Union from instituting U.S.-style software patents. But don't give up hope. The U.S. government and some of the biggest U.S. software vendors are working to bring those backward Europeans into the modern world, where software development can eventually be limited to responsible companies instead of being done by any-old-body with a computer and a good idea.Part of the sales pitch being given to the Europeans goes like this: "The U.S. lets just about anybody (who can afford it) patent just about anything, and we're the world's most innovative nation, so if y'all follow our patent policy it's only a matter of time until you're producing as many innovations as we do."

In September, 2003, software developer John Carroll, who now lives in Ireland, wrote a scathing attack on the idea that Europeans should duplicate the U.S. patent system. A quote from his article:

Most ideas are built, in some fashion, on older ones. This is particularly true of software. The kernels of most operating systems are reported to be very similar, which doesn't apply to the higher-level technology that has grown around this core like coral around a sunken ship. In addition, simple Remote Procedure Calls (RPC) are an old concept, but Soap and XML-RPC calls are enhancements of that model, building on basic principles laid out in the "ideas" associated with RPC.

In addition, the market for software creation is huge. It is estimated that there are 10 million active programmers in the world. This is a truly massive number, dwarfing the number of innovators in other technical disciplines. This large number is driven both by the demand for software product as well as barriers to entry which are unusually low. Anyone with a cheap computer can acquire the tools required to build software. This means that R&D in the software industry is noticeably cheaper than R&D in other industries, and this, combined with large numbers of programmers, leads to a lot more contributors to global software R&D.

This leads to a fast-paced software market composed of large numbers of competing products. These products compete by creating new "features" to include in new releases. In other words, software is uniquely dependent on the creation of new ideas, and as such, will be naturally inclined to high levels of R&D. The question, therefore, is if there is any R&D gain to be derived from the economic expedient of software patents.

He takes another three paragraphs to lead up to this one:

In addition, remember that new ideas are reliant upon the presence of older ones. If those older ideas are patented, then someone has a 20 year lock on that core idea. This can be dangerous for innovation in the software market, a market characterised by rapid changes and a proliferation of new ideas. Licensing tollbooths on the foundations of new ideas can greatly hinder the appearance of new ones.

The whole article is six pages long (and worth reading). Toward the end, Carroll says maybe Europeans should figure out their own software patent system instead of following the U.S. model, if only because when the U.S. patent system is eventually proved to hinder rather than foster development, "it would be worthwhile to have a working example in Europe to serve as a guide when America decides to alter its own laws."

Your (U.S.) tax dollars at work

As you have almost certainly heard, everybody's favorite U.S.-based software monopoly was slapped harder by the EU earlier this year than it ever was by its friends in the U.S. Department of Justice and federal court system. Assistant (U.S.) Attorney General Hewitt Pate was quoted in ComputerWorld (and elsewhere) as saying:

Imposing antitrust liability on the basis of product enhancements and imposing 'code removal' remedies may produce unintended consequences.

Sound antitrust policy must avoid chilling innovation and competition even by 'dominant' companies. A contrary approach risks protecting competitors, not competition, in ways that may ultimately harm innovation and the consumers that benefit from it.

This is far from the only time U.S. government trade and legal officials have publically expressed disgruntlement with their EU counterparts over differences in laws and court decisions.

Obviously, not everyone in the world seems to think the U.S. ways of doing things are best -- and U.S.-style patent practices especially seem to be coming under fire right now. A ZDNet UK article published June 8, 2004, claims, "The majority of staff at the European Patent Office (EPO) feel they do not have enough time for patent examinations and back-up examinations, according to a survey of 1,300 patent examiners conducted by the staff union."

With a recent decision by the European Council expected to lead to software patents in Europe, this problem is only going to get worse.

An especially fun quote from the June 8 ZDNet UK article:

...reduction in patent quality could have serious implications if the draft EU Software Patents Directive becomes law. The vague wording of the draft has been criticised as this could lead to patent warfare dominated by large companies, already the situation in the US software industry.

Greg Aharonian, editor of the Internet Patent News Service, on Tuesday stated: "Well, are none of you surprised thatâ¦as EPO workloads increase, EPO patent quality is quickly dropping to PTO [US Patent and Trademark Office] levels?"

"Industry is still signalling that they don't care about patent quality, despite many lies to the contrary," Aharonian said.

This almost sounds like it could have been written by the same radicals who wrote this MandrakeSoft statement and support the Foundation for a Free Information Infrastructure (FFII).

Worse yet, even the stodgy BBC has an impassioned article on why EU software patents are a bad idea and suggests that voters in the EU Parliament elections on June 10 should use their votes to "Fight for the right to program."

Don't worry, Europeans, we're behind you

We Americans want you to enjoy the benefits of software patents as much as we do. Note that both our government and some of our industry leaders are working hand-in-hand with the European Parliament to help you get software patent legislation enacted, even to the point of directly sponsoring EU Parliament members.

This is all being done in the spirit of trade fairness. It simply wouldn't be right for us to have well-organized, patent-based software development controlled by corporate leaders who know what's best for everyone, while you poor Europeans are forced to suffer from willy-nilly software development by individuals who have not been screened, approved, and trained by corporate human resources professionals -- and might want to strike off in new directions and do truly original work instead of following orders like good citizens.

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