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Software patents in Europe: response to an attorney

Last week, OUT-LAW presented an article entitled Software patents in Europe: debunking the myths, in which patent attorney John Gray expressed his views. Here, OUT-LAW presents the response from anti-software patent lobbyist Paul Hayes.26 Aug 2004

Describing Gray's commentary as "possibly the most inaccurate and misleading article on this subject I have ever read," Hayes took issue with many of Gray's comments in an e-mail to OUT-LAW.

The following views are those of Paul Hayes, reproduced with Hayes' permission.

John Gray commented that there are no moves to set up a system similar to the US, that the draft Directive is intended to reinforce the boundaries established by case law. Why do you disagree?

It is precisely the intention of the originators and supporters of the Directive to 'harmonize' European patent law with that of the US and Japan and it is easy to see why: The EPO has since 1986 granted more than 30,000 of these pure software patents, including many covering business methods and trivial and basic functionality.

It has already drifted to the extreme liberal end of the spectrum and it has done so against the letter and spirit of Article 52 of the EPC of 1973 [which excluded business methods and computer programs from the scope of patentability] and conventional patent doctrine. Consequently those patents are of questionable legal validity in many European states and that is the situation that the proposed Directive, drafted with the assistance and advice of representatives of the mostly US corporate holders of 75% of those dubious patents seeks to 'remedy'.

Examination of the historical record, including the fact that in August 2000 the European Patent Organisation attempted to delete the exclusions listed in Article 52 of the EPC, makes quite clear the intentions and motives of the originators and proponents of the Directive. It is disgraceful that they invariably claim the opposite in public, though indicative perhaps that they are well aware that what they are attempting to do is wrong and contrary to the public interest.

John Gray talked of the effort in Europe to consolidate and formalise the status quo in patent law, saying it has been frustrated "by a small but highly organised and vocal lobby, based on a selective and romantic image of computer programmers all working alone on their own projects." What's your view?

This is an insult to the more than 350,000 concerned programmers, scientists, economists, businessmen and legal scholars who signed the petition against the Directive and shows an utter disregard for the opinions of the vast majority of European SMEs (see e.g. www.ceapme.org).

To portray the opposition to software patents and the Directive as a small band of deluded romantics is quite outrageous. The "effort" that was "frustrated" was an underhand attempt to deceive the European Parliament and thwart the democratic process, and if it has been frustrated by the work of the FFII [Foundation for a Free Information Infrastructure] with the active assistance of leading experts in European law, economics, software development and patent law, it would better be described as having been an act of public service.

The current law and the draft Directive do not allow patents to be granted for computer programs, methods of doing business and mathematical methods (among other things) as such, but they also make clear that inventions making a serious technical contribution are not excluded from patenting merely because modern apparatus in the form of a computer is used in their implementation. What's wrong with this position?

It prompts three questions: First, why have 30,000+ of such presumably disallowed patents been granted? Secondly, why do the proponents of the Directive consistently refuse to provide any examples of pure software patents that would be excluded by the Directive? And thirdly, as the extant law is so clear, why the need for a new Directive to clarify it at all?

Commenting on Linux, Gray said that inventions in software operating systems have always tended to be more likely to have the necessary "technical contribution" for patentability than application software, because operating systems are more concerned with the "nuts and bolts" of the machine on which they operate. Why do you disagree?

This really is utter nonsense and shows a complete lack of understanding both of software and of the uses to which the EPO and other Patent Offices have put the conveniently undefined phrase "technical contribution".

For historical reasons there are actually relatively few software patents on Unix-like operating system technology compared with other software fields of comparable size and maturity and it is naive to imagine that most of such software patents that are of concern - to the Linux developers for example - have any direct relevance to the hardware - the "nuts and bolts": They are mostly concerned with matters such as memory management algorithms - purely abstract concepts unrelated to the physical nature of the hardware. An average software developer is far more likely to run into problems with software patents blocking work in fields such as image processing, video encoding, voice communications, 3D graphics processing etc. If one thinks there is any connection between "technical contribution" in software patents and the physical nature of the hardware, one is very much mistaken.

It is important to understand that hardware is specifically designed to present a reliable digital interface to the software interacting with it - as though it were an abstract software component itself. The hardware interfaces in a general purpose computer are carefully constructed to harness the controllable forces of nature to suit the abstract digital nature of the software that controls them - not the other way round! By far the majority of what an operating system does - like any other software - is process informational entities and as far as physical considerations must be taken into account (e.g. where data need to be placed as contiguously as possible on a disk), the problems and solutions are modelled and implemented in abstract form and are not in principle any different to any other abstract problem in applied mathematics. The assertion that there is a preponderance of software patents in general operating system technology because of interaction with hardwa re is nonsense - even if there was such a preponderance, the same distorted "technical contribution" argument is (necessarily) used to justify every other software patent too."

Gray made reference to Munich City, where fears were voiced that choosing Linux could result in future liability if the Directive were passed. Gray considered that changes to Europe's law are irrelevant to the choice of operating system. Why do you disagree?

Munich City is not intending to run just the Linux kernel or the GNU/Linux operating system on its computers but a whole range of software developed by the free and open source software (OSS/FOSS/FLOSS) community. [FLOSS stands for Free/Libre Open Source Software and is described as a "politically correct" term to indicate Free/Open Source Software.]

The various projects that develop and distribute this software have no patent portfolios and funds themselves, let alone portfolios and funds large enough to act as an effective defence against the major patent holders like Microsoft. They do not have any means at all of defending themselves or the users of their software from patent holders who would wish to eliminate them as competitors.

Consequently, Munich City could easily find itself in the position at some point in the future of being forced to cease using most if not all of its new systems and start all over again with proprietary replacements. This is likely to happen if the validity of software patents is ratified by the adoption of the Directive.

The point of drawing Munich City's attention to the estimated 283 software patents that the Linux kernel potentially infringes was to elicit its assistance in pressuring the German government to withdraw support for the proposed Directive - which it had in fact earlier promised to do.

Gray reasons that software development should be treated like the manufacture of physical entities. How do you distinguish them?

The analogy is false and is often used to hoodwink those with little or no knowledge of software design and development. It ignores the vigour of the software industry before software ever became patentable in the US. It ignores the existence, growth and vigour of the global community of millions of FLOSS developers and users. It ignores the fact that progress in software development is generally by incremental and trivial steps, results in applications containing thousands of ideas and occurs in an industry that has a minimal financial barrier to entry. It disregards the principle that patents are to be used to promote progress in the sciences and the useful arts and that economic studies and the opinions of almost all experts in the field including prominent developers and major software entrepreneurs that show that software patents have the opposite effect.

Gray also suggested that it is impractical to draw a clear line between electronic systems and "software" inventions as the software and the machine work together.

No it is not: in the case of inventions that could be implemented either as pure software or in specially designed electronic devices, the electronic devices ('chips') are covered by their own sui generis law. In the case of a device or industrial process that requires a software invention running on a general purpose computer as part of its implementation the software could not possibly operate in such a way as to infringe a valid patent unless it was being used as part of that process or device. A pure software invention is an abstraction, easily separable from any true invention that teaches something new about the use of controllable forces of nature.

Surely small companies get patents, too, not just the "big boys"? Gray suggests they can level the playing field, even if that means the "big boys" simply buy the smaller company's patent.

This is a myth and it's meaningless to any small software company or developer because his or her complete application will unavoidably contain a number of infringements of patents held by "the big boys" that will render their own patents completely ineffective.

Unless, that is, they are one of the growing number of so-called 'patent parasite' companies that do not actually produce any software product but merely hold patents that they can use to extort fees from genuine software developers.

It often surprises people who view the serious anti-software patent lobby as a bunch of hippies and anti-capitalist anarchists that we fully and whole-heartedly support Microsoft in its battles against companies such as Eolas. The "big boys" will not be forced to buy your patent, they will force you to cross-license or face counter suits and you may as well not have wasted the not inconsiderable time and expense involved in applying for a patent in the first place.

Gray considered that UK companies in science and engineering that wish to pursue patents with a strong software content presently have to pay patent attorneys like him more than those with other types of inventions, simply because they have to work around "arbitrary and blurred exclusions" from the EPC.

Arbitrary? The EPC contains arbitrary exclusions? Perhaps it was drafted by a couple of slightly tipsy legal experts one afternoon in a pub but I was under the impression that the exclusions were very carefully considered and deliberately placed there for very good reasons.

Gray added: "Too many voices at present simply deny that the patent system has any relevance to software technology, and see only the potential injustices and not the upside."

Too many for the convenience of the vested interests of the patent lawyers, patent departments of large companies and the Patent Offices perhaps? And who are the owners of these voices? The new-age travellers? The anarcho-punk anti-capitalists? The chatterati? No - we are the professional and amateur programmers, the scientists, mathematicians, lawyers and economists who actually know what we are talking about and have seen the effects of software patents in the US and know the history of the industry.

We are the people who are aware of the chilling effect on innovation that software patents have, how they deter research and advance in entire areas of development, how they reduce diversity and competition and enable persistent monopolisation in markets by allowing denial of interoperability.

We are the people who realise how extraordinary and anomalous it is that 99% of the owners of personal computers stare at a screen mostly filled with the patterns produced by the software products of just one enormous company. We are the ones that realise that this is likely to change in the future, greatly to the benefit of the whole of society (but not if the nascent FLOSS community is mortally wounded, as it would be, by propagation of the pestilence of software patents suffered in the US and Japan).

The patenting of software inventions is entirely without empirical or theoretical justification or of any conceivable benefit to the economy or society and it is about time that those who claim the contrary at least try to support their claims with something more substantial than these tired old fallacies, naive, unfounded assertions and blatant misrepresentations continually regurgitated by the pro-software patent propagandists.

Tomorrow: John Gray responds to Paul Hayes

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