Patents meeting in Cambridge last week - follow up

["Jeff Veit - Tanasity" <patents@tanasity.com>]

Hi,

Below are a list of the suggestions synthesised from the notes from the
Patents meeting in Cambridge last week.

For those who weren't able to attend - just fewer than 40 people attended,
representing patent attorneys, individuals, SMEs, and large companies. Both
Free Software developers (individuals and FFII) and commercial software
developers were represented. We had three presentations covering the
existing patent system and the proposals, why software patents are a bad
idea and how software patents helped on small company to gain investment. We
followed the talks with round-table discussion


Suggestions and notes from the meeting

1. The starting point for our patent system should be an economic
perspective and not a legal perspective. We have very little idea of the
economic impact that formalising software patent framework will have. Where
does the greatest economic benefit for the EU lie? We should take no
decision to make a formal change to the framework for software patenting
until we have studied the economic benefits and the economic impact; there
is a substantial danger that we will be breaking an economic ecosystem that
works at present, and this could result in the loss of many jobs.
Additionally we have very little idea of the impact that formalising rules
on software patenting could have on Free Software, and almost no measures of
the economic value of Free Software despite it being the bedrock of the
Internet.

2. Regardless of whichever side the argument businesses and individuals are
on, the system should provide *clarity* for its users. There are two issues
of clarity:

-a) the legislation and rules should be absolutely unambiguously clear; it
is to be noted that the phrase 'software as such' was not unambiguous
despite it being clear in the minds of many software developers. The clear
intention of the EU as to what is patentable and what not should be evident
in the wording.

-b) we can probably expect the number of software patents to rise, and be
more rigorously enforced, once the legislation is introduced. We need to
protect companies and individuals from patent landmines and should enshrine
a defence of independent invention.

3. The meeting was in broad but not unanimous agreement that there were some
software ideas that deserved patent protection. The RSA algorithm was
mentioned repeatedly. We were in agreement that there were very many
software ideas that did not deserve protection and yet were receiving
patents under the current system. There was broad agreement that this was
not desirable.

4. The quality of patents is a key issue. This is intimately bound up with
the length of time for which patents are valid. There was broad agreement
that the legislation does not consider the differences between software and
other technologies in this respect and that this could be disastrous for the
software industry and Free Software.

The software world is dynamic and fast moving. On the other hand the patent
period mandated by TRIPS is of the order of 20 years. There are very few
software advances which have value for 20 years; Microsoft MS-DOS version
1.25 technology would only recently have been emerged from patenting had it
been patented. Version 2.0 would emerge this year. And versions 3.0 and 3.11
which were most widely used would emerge only in 2004. It is not
unreasonable to assume that had this software been patented, Microsoft would
have used the patent system to encumber its opposition instead of innovating
and creating Windows.

It would be reasonable to reduce patent validity to 5 years where software
was a key part of the process being patented. However TRIPS is a problem in
this respect.

A valuable way of looking at the problem would be to say that the level of
inventiveness required for a patent involving a software process should be
one which deserves 20 year protection. RSA would fall into this category,
whereas trivial software improvements would not.

5. If the EU intends to formalise new rules on software patents they should
extract concessions from the USA to:
- a) improve their patent quality;
- b) reduce the cost and delay of their judicial system;
otherwise the EU will continue to import legal services from US patent
attorneys.

6. One purpose of the patent system is to increase the body of knowledge. We
should take the utmost care that the system does not encourage people and
businesses to remain ignorant. Clearly a contradiction exists with point 2b.
We must be certain that the benefits outweigh the disadvantages when we make
a change to the natural order of things, and so the system should not
disadvantage people and companies who use it to learn, in the process
discovering infringements that they have inadvertently made.

7. Computer software is unique in that the algorithm and the product itself
are one and the same. We should require annotated source code as part of the
patent application; this would serve to increase the body of knowledge that
exists on software since software development is an art that depends on
example in order to advance. The patent system would gain credibility in the
eyes of software developers if it provided a useful body of knowledge.

8. It's not defensible to hold a patent stopping others from making use if
you are not actively making use of the patent. This is particularly true of
software where independent invention happens repeatedly. Use it or lose it
rules would be sensible in software.

9. Free Software deserves special protection. The law should protect Free
Software authors from patent claims. It should make it easy for businesses
selling Free Software to comply with patents by giving them automatic
protection from lawsuits in return for a fixed compulsory percentage of net
sales. A figure of around 7%, should be divided amongst all patent holders
impacted by Free Software.

10. Patent holders should not be permitted to make it impossible to write
interoperable software. This applies equally to both proprietary and free
software, but free software cannot generally pay for licenses so is
particularly affected.

11. The costs associated with the patent system - in filing, maintaining and
in litigation - intrinsically favour larger companies over smaller companies
and individuals. In particular the assumption that any problems with the
system will be dealt with in court poses an enormous problem to smaller
companies and individuals who don't ever want to end up in court if they can
possibly avoid it. This is intrinsically disadvantageous to the small-fry.
The process moves software development out of the grasp of individuals and
firmly into the business sphere. Free software people see this as a bad
thing - a view that is probably shared by most software developers.

12. The EU should explore the idea of supporting the Free Software movement
economically in building a body of prior art listings. Free Software
provides a large open body of software ideas. Doubt was expressed by many
participants about the quality of the patent searching with respect to
software.

13. For the protection of SMEs and Free Software, some at the meeting felt
the EU should investigate Patent Unions.

14. For the protection of Free Software the EU should investigate funding
patents protecting Free Software.

15. To improve the quality of software patents, patent offices could use
juries of experts where doubt exists during examination.

16. There was no-one in favour of allowing business process patents. The
legislation should be tested against business method patents to ensure that
it does not inadvertently allow them.

17. There is requirement on the Commission to monitor the impact of the
proposed new framework; in the light of the lack of conviction for many that
there is evidence that software patents are beneficial, there should be an
undertaking to review the system further unless the evidence shows clearly
that there are such advantages.

We are encouraging people who were at the meeting to write to their MEPs and
members of JURI. We will send this note to the JURI members.

Best wishes,

Jeff Veit

http://www.tanasity.com/ - Tanasity develops software and net applications -
radical web update next week - and I've said this for 3 months
http://www.tangledtime.com/ - Occasional blog about the net, software and
business
http://www.chase.org.uk/ - Cambridge Hi-Tech Association of Small
Enterprises - brilliant networking for hi-tech companies around Cambridge,
UK
http://www.chaseconference.org.uk/ - Where Angels Dare and VCs also Tread -
October 10th 2002 - it's happened but I'm very proud of how successful it
was

Tanasity
Mobile: +44 (0)7812 217448
Tel: +44 (0)1223 721499
Email: jeff.veit@tanasity.com