Patents are a powerful economic tool to promote innovate technical developments. They are a temporary monopoly over the manufacture and use of an idea in return for full disclosure of that idea. One of the EU's stated aims is to promote competition in business so granting a monopoly is something which should be done cautiously and only when it is certain to help economic development. Recently the EU has attempted to add software to the type of innovations which can be patented.
Current patent law is outside the scope of the EU. It is controlled by the European Patent Convention and overseen by national patent offices and the European Patent Office which includes non-EU members. The European Patent Convention explicitly bans the patenting of software. Over the last few decades software development has flourished despite the inability to patent innovations. There are many problems with the current patent system in general, patents are granted for trivial inventions or even discoveries and the patent documents are written in a legalese which is extememly hard to understand, but there are also reasons why patents are il-suited to software specifically.
Patents last 25 years but most software lasts less than 10 years. There can be no advantage to society if the innovation is no longer relevant once the patent has expired.
Software is already restricted by copyright, this is another strong tool to help authors ensure income from writing software but which places obvious restrictions on those who use that software. The lack of competition in many areas of the software market is due to copyright, patents would make these monopolies many times worse. As a reaction against the restrictions of proprietry software there has recently been a massive growth in the development and use of Free or Open Source Software which can be freely copied and modified. Because patents restrict the very use of an idea Free Software development could easily be stopped by software patents.
Finally software development is simply different from other technological developments. While it requires advanced machinery to manufacture physical goods anyone with a computer can develop and innovate software. Each day that I program I create new patterns and methods which could be patentable, if I had to check each one to see if a prior patent existed first I would never get any development done.
If software becomes patentable there will be pressure to remove other unpatentable items such as mathematical equations and business methods. A line has to be drawn somewhere and physical objects is a sensible limit.
Currently there are two developments in Europe which are changing the position of software patents. Over the last few years the European Patent Office has increasingly approved patent applications for software (and business methods and algorithms) against the letter and spirit of the law and the EU is considering legislation to allow software patents. In October the European Parliament voted to make improvements to the directive which significantly limit the ability to patent software, this was largely due to some excellent compaigning and demonstrating of the parliament. However the parliament does not make the final decision, the EU Council may revert the changes. Now is the time to write to your national members of parliament asking them to ensure the Council keeps the restrictions made by the parliament.
Software patents are not a common Quaker concern, just as it is not among the general public. By reading this article you will probably have gathered that it is a complex area requireing specialist knowledge. However the topic may be specialist, but the effects it has will touch us all.
Some examples of software patents and a patent for a Chrysanthemum named Quaker are on my website: http://jriddell.org/patents.html
November 2003, Jonathan Riddell
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