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Simon Phipps's personal commentary

Patents - Time for Wisdom
I'm personally pleased to see that Poland blocked the software patent directive at the European Commission - sneaking it in at an Agriculture meeting was a sure sign of desperation and ignored the very real problems that had become apparent in the second half of the year. My pleasure is less because of my personal opposition to software patents and more because an injustice was about to be done and this has hopefully prevented it.

I attended several meetings a month or so back on this subject and it became very clear to me that the main problem in the discussion is that there are several parties for whom the issue has different impacts. By creating more time for mutual understanding it should be possible to balance those different interests in a way that protects everyone's interests. Right now the parties are polarised and mutually unsympathetic - to the point of verbal abuse - and that's plain wrong.

Allowing patents on abstract ideas is clearly bad - look at the mess business method patents are causing (and could cause) in the US. But there's plenty of grey to consider. Is a silicon chip hardware or software, for example? It's defined by thousands of lines of software tools like Verilog, so are improvements to it software improvements? The biggest problem the patent issue faces is from different groups using the same words and even concepts for (sometimes subtly) different things.

The loudest (and most emotional) voices I heard were from the mobile industry, which has created it's own variant of 'standards' in the form of open groups which knowingly select from a pool of patented technologies to create mobile telephony network standards. The relaxed openness of the 'standards' groups is complemented by the fact that all participants know they will have to pay to license the patents behind the technologies selected when they become the standard. As technologies become more and more algorithmic, the mobile technologists fear that their cartel will be eliminated unless patents are also allowed on computer-implemented technologies. Their voice was pretty much the only one heard by legislators in the early days of the campaign.

Late in the day, it dawned on many of us that the same words necessary to preserve the mobile industry might prove the death knell of the new software industry growing around the massively-connected society, allowing new cartels to move in to what we've all been assuming will essentially unregulated space. The realisation may have come late but that doesn't make it invalid. As envisioned, the Directive looked to me like it weakened the social contract that patents depend upon rather than strengthening it.

I do believe there's scope for both groups to have their needs met, through carefully worded legislation rather than through fuzziness and test cases in Europe's courts. In particular we need to make sure that it's not possible for the reverse-engineered interoperability allowed by European copyright law to be prevented by patent law. When I independently write software that handles a network protocol or a file format I must be protected from the collection of royalties (unless of course I have re-used the work of others).

To build that wise language we need more time, and the software industry - open and closed source - should be grateful to the Polish delegation for their intervention. Now it's time to pause, listen and exercise the wisdom that will build a win-win.
posted at 5:07 PM (UK) | |