Re: [Sheflug] Software Patents and small businesses

[David Holden <dh [at] xxxxxxxx>]

On Wed, 2003-07-09 at 10:31, Bob Holland wrote:
> Some of you will no doubt have received emails regarding EU patent changes 
> for software products.
> 
> I note that Club UK Online has a workshop in Hull next week. In view of the 
> EU vote regarding software patents (now shceduled for September) I am mindful 
> to go along & would like to try to get the concensus of opinion of this 
> group, particularly in terms of what is best from the point of view of the 
> South Yorkshire economy, its citizens, local communities and small businesses.
> 
> Are software patents a good thing?
> 
> The general argument for patents is that they help protect investment in 
> innovation. My own feeling is that in a global marketplace patents in general 
> protect large company interests to the exclusion of small companies and 
> thereby stifle true innovation. Of course, patented work is 'published' 
> (don't believe anyone if they say to you 'this is a secret patented process' 
> - something I had to point out recently to the authors of a Which? report). 
> The counter argument to this is that patents can be used to protect 
> the work done by small companies. However, since it is the inventor's 
> responsibility to...
> 
> (a) identify any pertinent 'prior art';
> (b) produce the patent application in the appropriate 'patent speak';
> (c) defend the patent in the courts against infringement;
> (d) pay renewal fees;
> 
> ...very deep pockets are required. I guess we are talking today about a 
> budget of somewhat more than £30k plus renewal fees to obtain patent 
> protection in the major industrialised territories. In a global markeplace 
> there would appear to be little point going for a UK patent. There are not 
> too many small companies I know who can do this.
> 
> When it comes to (c) and a big(ger) player is involved, they will probably 
> sell out rather than defend their independence through the courts - sounds 
> like a recipe for anti-competitive practice to me.
> 
> An example from my own background...
> 
> Back in 1979, working for a small local company I designed a 'programmable 
> controller' for use in the baking industry. This incorporated what would be 
> known today as an 'integrated development environment'. This system was sold 
> to a number of clients and incorporated in a range of bakery process 
> machinery. A high speed dough mixer incorporating the system was launched in 
> Las Vegas in 1980 and was widely used during the 1980s.
> 
> A year or so ago I was reviewing my CV and noted how commonplace one of the 
> techniques I had used in this product had become. Something 
> prompted me to do a patent search using a couple of key words. I very quickly 
> located a patent awarded to a large US company (familiar to all but not an 
> obvious player today in the computer game). The patent was clearly important 
> (it had been filed in many parts of the world) and had been licensed to the 
> likes of Borland, Microsoft et al. The date on the patent was 1983. Whilst I 
> have no wish to claim 'invention' of the technique (as others unknown to me 
> had probably beaten me to it), I can probably prove that the patent is 
> invalid - but heck, I am on my own and would be fighting against a large US 
> corporation and the patent has (almost) expired anyway.
> 
> There are several points raised by this...
> 
> 1) It is almost impossible to identify relevant prior art - the US patent 
> department seems particularly bad at doing this (another story) and 
> frequently rely solely on the statements of the applicant;
> 2) The technique I developed was merely a side issue to the main purpose of 
> the product and was therefore not considered especially significant (by me);
> 3) Software patents were not allowed in the UK anyway, so the technique would 
> not have been identified as patentable.
> 
> This experience seems to suggest that small companies should be more 'patent 
> aware' and that patent protection should be allowed for software. It also 
> suggests that it would be a good idea for 'inventors' to retain an 
> experienced patent agent who would review all developments both for 
> patentable content and potential infringement. Having worked with a number of 
> patent agents over the years it seems inventors are particularly bad at 
> identifying 'patentable' aspects of their work.
> 
> Given that a patent system already exists and is likely to be extended to 
> software then I would tend to agree that a good patent agent becomes a 
> necessity - good news for patent agents but an impossibly large cost for an 
> individual and prolific inventor. Together with (1) above, it is why I 
> believe that the existing patent system discourages real innovation in small 
> companies and why further extension should be resisted.
> 
> Given the worldwide explosion in technology since the concepts of patents 
> originated, is it not time for the world to have a complete rethink?
> 
> Open source's concept as the equivalent of publishing scientific papers runs 
> somehwat parallel to the patent system. Why should individuals not be free to 
> publish their work if they wish? Providing the 'prior art' is researched 
> correctly, patents will not be granted for work already in the public domain 
> and open source will have achieved its aims. The difficulty for innovation is 
> that individuals may be discouraged from coming up with really new ideas in 
> the public domain in case they are in infringement of a patent somewhere.
> 
> Many 'patents' which have demonstrated the properties of 'industrial 
> application' and 'an inventive step' will of course have been built on 
> published research. The publishing process encourages inventiveness and 
> rewards inventors through salaries, research grants and the 'kudos' of  
> having their work recognised in peer-reviewed journals.
> 
> The patent system rewards those in turn who may incur significant up-front 
> costs and commercial risks to turn 'ideas' into the real products which 
> provide benefit for humanity. This is often forgotten in the discussion on 
> software but is very real in other areas of technology.
> 
> Does extending the scope of patents in reality have any effect on this?
>  
> I view the open-source approach as essential for innovation in my own work - 
> it enables me to 'stand on the shoulders of giants' as it were and to earn a 
> reasonable living whilst in return acknowledging the contributions of others.
> 
> Perhaps government-funded open-source projects operating in the same way as 
> other government-funded research will enable authors to be adequately 
> rewarded for their work. Existing funding agencies don't appear to understand 
> this concept.
> 
> Any views on this? Perhaps an 'Open (source) University' should be 
> established and we can all go back to wearing kipper ties? (Hey - I bags the 
> copyright on that one!).
> 
> Must go for now,
> 
> Bob Holland
> 
> 

The thing that stands out for me with regard to software patents is that
it looks very likely that *in practice* it will work against software
innovation.

Since the patent office will neither have the resources or expertise to
establish that a patent request is new and inventive it will lead to
some pretty bogus patents, and because of the costs involved it will
lead to large corporations building a library of (valid/bogus) software
patents either as a defensive measure (patent trading with other large
organisations) or just for plain, blatent abuse of smaller (innovative)
software companies. (e.g. see this link
http://www.forbes.com/asap/2002/0624/044_print.html)


  Dave.

> .
-- 
Dr. David Holden. (Systems Developer)

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