Software Patents Explained

This article appeared in print in Micro Mart issue 834, January 2005.

It's not much of an exaggeration to suggest that you need a law degree to understand the software patents debate, but let's try and break it down a bit and explain things in plain English with as little lawyer-speak as possible.

In December 2004 the Patent Office invited a few hundred people who had written to their MP in order to express concern about software patents to a meeting at the Department of Trade and Industry. Their intention was to separate the fact from fiction and show that the laws they are supporting aren't all that bad after all. The meeting left most anti-software patent campaigners unconvinced and the debate which has been raging for the last three years is still showing no sign of cooling off.

So what's the big deal?

The anti-software patent movement have been the most vocal. Patents on software (also known as 'computer implemented inventions') are designed not to prevent the actual copying of programs, as copyright does, but to prevent the copying of ideas and ways of solving a problem. A method of spell-checking a word processor document is an en example of a potentially patentable idea. The pro-patent lobby says that allowing software patents will "help support a strong and vibrant technology based industry". They argue that patents simply allow someone who has had an idea to profit from it, without their competitors being able to steal it. Perhaps this works well in engineering, but does it apply to software? Anti-patent campaigners argue that it doesn't and that copyright is adequate to protect software. They also argue that patents mean that you can be sued for using a particular idea in a program you've written if someone else has already patented it, even if you've been living on a desert island and can prove that you didn't copy it. They claim that it is impossible to tell if your program infringes upon any patents - there are so many and their wording is often very broad. Instead of covering one particular idea, a patent can often cover a multitude of similar yet very different ideas depending on how the wording is interpreted. Many law firms recommend not checking for patents at all, as the penalties for publishing a piece of software which you know infringes patents are much more severe than for publishing a piece of software which you were unaware infringes on patents.

It is argued that if software patents are permitted in the UK and Europe, small software companies are going to be hit hardest. Most probably cannot afford to file patents themselves or to spend the time checking existing patents to make sure that their software doesn't infringe upon any. Perhaps another company will come across the idea they couldn't afford to patent and patent it for themselves, even though it's not their idea. This happens in the US all the time and there are many companies which exist solely to file patents for other people's ideas then extort money from the companies who came up with them. Also in the US, software patents are often used like currency between large companies. Say Intel discovered that IBM were infringing upon one of their patents. Ordinarily, you'd expect them to sue or demand money, but that would be very costly and wouldn't really help either party. So what often happens is that Intel might offer to allow IBM to use their patented idea, if IBM allow Intel to use one of their patented ideas. Pro-software patent campaigners claim that this so-called 'cross licensing' is a good thing which encourages the sharing of technology, while anti-software patent campaigners argue that this practice excludes small businesses who may not have patents to trade and so be unable to avoid a lawsuit. More generally though, if a company discovers that a piece of software they've written does infringe upon a patent, they will have to buy a licence to use the idea the patent covers. This could well be 5% of all profits made from selling the software - for a small company who may not make much profit, this alone could mean disaster. But what about if their software infringes upon ten patents? Or twenty? Or more?

Then of course there's free and open source software. How can a group of people who distribute their software at no cost be expected to buy a patent license? Of course they can't, which means that they have to stop using that particular idea in their software or risk an expensive lawsuit. But what happens if the patent isn't actually valid and shouldn't have been granted? A group of free software programmers or a small business can't afford to go to court and prove that the patent is invalid, so their only option is to surrender themselves to the wishes of the other company's lawyers. Pro-software patent campaigners argue that small businesses are very rarely targeted by larger companies and that open source has continued unhindered in countries that already allow software patents. But even the UK Patent Office agrees that mirroring the US patent system in Europe is a very bad idea indeed.

What's the current situation?

The European Parliament decides what happens next. There is currently a directive progressing through Europe which is intended to set-out a common software patent law throughout Europe. After tireless lobbying by software writers including the free and open source software communities substantial changes were made to the first draft of the directive by the European Parliament. The European Parliament worked hard to produce a version of the directive which restricted the patentability of software in Europe and listened to the concerns of their constituents. The last version of the directive produced by the Parliament was supported by the Foundation for a Free Information Infrastructure who have been one of the most active anti-software patent campaign groups. The directive was then passed to the Council of Ministers, an unelected group made up of ministers from the member states. They have made alterations to the Parliament's version of the directive and removed many of the restrictions they added, although the Council's version of the directive has not yet been officially finalised. This is not the end of the road however and the directive could possibly be further amended by the Council, then by Parliament, then by the Council again before a final version is agreed upon and adopted.

At the meeting hosted by the UK Patent Office and the Department of Trade and Industry the government surprised everyone by claiming that they actually don't want to change things and allow unlimited patentability as anti-patent groups have alleged. As the directive stands, it will only allow the patenting of software which includes a 'technical contribution'. This phrase is causing all sorts of concern about what exactly 'technical contribution' really means; here's an example provided by the Patent Office: 'a technical contribution may be provided by the solution to a technical problem such as software that improves control of a robot arm' but this wouldn't include something like implementing bid limits in a web based auction. Anti-patent campaigners are concerned that this term could be extended to include all sorts of software but the government is arguing that this is a term that the courts understand and that changing it could create a term with an unproven and uncertain meaning.

What happens next?

The directive as it stands needs to be formally adopted by the European Council of Ministers before it returns to the European Parliament for further discussion. It was added to the agenda of a meeting of the European Agricultural and Fisheries Commission in December 2004 to get its rubber stamp, but was removed from the agenda at the last minute following a request from Wlodzimierz Marcinski, the Polish Minister of Science and Information Technology. Poland made this request because they felt that they were under too much pressure to accept the directive quickly. Anti-patent campaigners have been signing a letter of thanks which will be sent to the minister along with some flowers, but all this really means is that the rubber-stamping has been delayed until the next meeting of the Council of Ministers. It is possible that this will allow there to be further discussion on the directive before it is formally adopted, but this is unlikely. Once the Council have rubber-stamped it, it returns to the European Parliament for further discussion. The last time the European Parliament saw the directive, they made substantial changes to limit patentability and although it will be a new parliament following the European elections last year, it is likely that they will again seek to add further restrictions to the circumstances in which software can be patented. If they do wish to make further changes, the directive will then have to head back for more discussion by the Council of Ministers. If at this time the European Parliament and the Council of Ministers have been unable to create a version of the directive acceptable to both parties, it will enter a conciliation process, where an all-state working group will try to produce an acceptable compromise. This very rarely fails, but if it does then the directive will be dropped. This whole process is likely to take a year and then it will take more time for the directive to be implemented by the member states. The debate is far from over, so if you have a strong view either for or against software patents you can write to your Member of the European Parliament who will be able to keep your views in mind while they are working on the directive.

Quick Points

Pro-software patent campaigners say that software patents: -

Anti-software patent campaigners say that software patents: -

What is a directive?

In the European Union, a directive is a document which defines a group of targets for national governments to reach. A directive isn't actually a law, but rather a directive allows each member state to create their own law which achieves the targets set out in the directive. So a directive tells the governments what to do, without telling them how to do it.

Useful Links

For software patents:

Against software patents: