* GlennStrong SoftwarePatentsSat, 02 Jul 2005 07:00:01 -0000
== Current status ==
- ''Current status 2005 06 01'': The directive was passed by the Council. Next it will be considered by the European parliament on July 6th 2005. We hope that at the very least the amendments of Michel Rocard (who is the Rapporteur for this Directive).
+ ''Current status 2005 06 01'': The directive was passed by the Council. Next it will be considered by the European parliament on July 6th 2005. We hope that at the very least the amendments of Michel Rocard (who is the Rapporteur for this Directive) will be accepted.
It appears that JURI has asked for a restart, as we hoped they would. See: http://kwiki.ffii.org/?Restart050202En but the request was denied. URL: http://www.ifso.ie/cgi-bin/wiki.cgi/SoftwarePatents?action=diff
James Boyle: Geeks in software patent frenzy
By James Boyle
Published: June 30 2005 16:47 | Last updated: June 30 2005 16:47
available at:
<http://news.ft.com/cms/s/7644b608-e8bd-11d9-87ea-00000e2511c8.html>
European geekdom is in a frenzy. The cause? A key vote on a proposed
Software Patent Directive is due to be held in the European Parliament
on July 6th.
Except, depending on whom you listen to, the directive is not really
about software patents at all. Some argue that as its official name
indicates, it is only about “computer implemented inventions.” They
claim it will only cover systems that use software to control something
in the external world, traffic lights say, but not software that just
runs to be.. well.. software, such as an internet browser or a spread
sheet program.
Opponents strongly disagree. They claim the directive not only allows
expansive “pure” software patents, it also might allow for the toxic US
innovation of “business method patents.” If a normal patent covers a new
design for a corkscrew or a way of cooking burgers, a business method
patent covers the idea of opening a bottle of wine, or of selling fast food.
The debate has played out noisily over the last few years, complete with
accusations of procedural impropriety, intense arguments about legal
definitions, national government statements pro and con, the appearance
of “tech celebrities” (if that isn’t an oxymoron) and a level of
intensity that one might expect in arguing the ethics of stem cell
research but which seems strange in an area like this. What is going on?
On the substantive level, what is going on is a fight over the basic
conditions of competition in the digital world. Both sides agree that
intellectual property is important for innovation but they disagree
about how much – at what point more rights start to hurt rather than
help – and how enterprises of different sizes will be affected. A
particular and very real concern is the effect of software patents on
so-called “free or open source software” such as Linux which is created
by a fascinating process of decentralised development.
It does not help the debate that well-intentioned people simply disagree
about what the proposed directive actually means; an indication of the
dangers involved in law-making about property whose boundaries are
marked, not by fences or walls, but by vaporous ideas and concepts. A
property right crafted with one goal in mind can spread, amoeba-like, to
cover situations its drafters never intended. That was the certainly the
experience in the US.
Which side in the European debate is right? One of the problems is that,
as normal, the argument proceeds almost entirely without evidence. There
have been some empirical analyses, but they have generally been
conducted by advocates rather than policy makers, or have had
methodological shortcomings.
A Business Software Alliance study apparently showing reliance on
software patents in Europe by small companies was released and received
stinging media criticism for statistical inaccuracies and for a press
release which was interpreted – rightly or wrongly – as vastly
overstating the results. An interesting German-commissioned study of a
large number of software developers showed a consistent belief in
companies of all sizes that software patents would harm rather than help
the development of new software. This is a striking result but studies
based on attitudes and beliefs are notoriously difficult and the author
was careful to caution that the group might not be statistically
representative. There are good studies which show that patents can act
as a useful signal to investors, but also that they can allow dominant
firms to block new entrants and developments.
In the absence of further evidence, sound bites prevail. Proponents of
the directive are left claiming that “stronger rights will mean more
innovation.” Opponents quote Bill Gates’ 1991 words about the expansion
of software patentability in the US: “If people had understood how
patents would be granted when most of today’s ideas were invented and
had taken out patents, the industry would be at a complete standstill
today.”
There is, however a very impressive empirical literature of the
expansion of patentability on the US software industry that some
European policy makers seem to have missed.
For example, Professor James Bessen and Robert Hunt of the Federal
Reserve Bank found that the increase in the level of software patenting
in the US was associated with a significant decline in investment in
research and development by software companies. As more and more patents
were granted, companies spent less on R&D. Correlation does not prove
causation, as the authors appropriately caution. Nevertheless their
conclusions are clear about the assumption that granting stronger
property rights in software will stimulate innovation. “Our evidence
suggests this assumption may be incorrect in the case of software
patents. If, instead, the legal changes create patent thickets, the
result might well be less innovation.”
Certainly that is what the numbers on R&D dollars suggest. Funnily
enough, Microsoft gave financial support to two economists to write a
critique of the article. Has Mr. Gates changed his mind about the
anti-innovative effects of expanding software patents? The data indicate
he may have been right the first time. The European Parliament should
take note.
/This writer is William Neal Reynolds Professor of Law at Duke Law
School, founder of the Center for the Study of the Public Domain and a
board member of Creative Commons and Science Commons./