For some time now, there has been a great deal of debate and lobbying in Europe on both sides of the software patents issue. I will declare my bias straight away and say that, as a developer of both commercial/proprietary software as well as Free/Open software, I am firmly against the patentability of algorithms and software. Patents create a legal minefield, almost impossible to map out, in which any given non-trivial piece of software could simultaneously infringe upon hundreds of patents. The situation with software is fundamentally different to, for example, the pharmaceutical or manufacturing industries. Richard Stallman has given numerous speeches on patents and written many articles, including an excellent analysis of patents that I urge everyone to read.
Patents were originally intended to protect inventors, and give them an opportunity to profit from the fruits of their ingenuity before competitors sprang up to take over their market. Now, a multi-billion dollar industry has built up around patents, a government-sanctioned monopoly on an idea.
Many large corporations are, unsurprisingly, very much in favour of allowing patents on software. And many of these corporations are based in the US, where patents have long been granted on software. However it seems to be common knowledge that patents are gathered by these large corporations to build up a "war-chest", to be used defensively (to counter-sue) if one is sued for infringement, and to force cross-licensing ("you appear to be infringing upon our patent #543,164,812 - we won't sue you if you license us your patent #490,394,301").
Given the very high costs associated with registering a patent, then defending it by suing alleged infringers, the economic barrier is generally far too high for small businesses and independent software vendors (ISVs). So patents end up enriching the big businesses at the expense of ISVs, the very groups patents were supposed to help.
Indeed, the situation has become so bad that pure litigation companies have sprung up, to capitalise on the "intellectual property market". These companies do not sell any products, provide any services, and employ only lawyers, with the sole purpose of buying patents, then going around suing legitimate businesses for infringing. They make money from other peoples' ideas, and the system is more than happ to let them do it.
Free/Open developers are at great risk of becoming litigation targets, and becoming embroiled in cases they cannot possibly afford. Many projects have been forced to shut down or remove features, simply because they cannot afford the risk of being attacked with a patent suit.
And there have now been so many "frivilous" patents filed, one has to wonder where to begin? Like Microsoft recently patenting the "ISNOT" operator in BASIC, a construct that tests whether or not two objects are identical. Or Microsoft's patent on a modular spelling checker that is shared by more than one program. Or their patent on selecting a column of numbers in a spreadsheet and hitting a button to add them up. Or...
But now, even Microsoft are calling for patent reform. Brad Smith, their General Counsel, is quoted as saying "It's only a system that works for the largest companies."
And that the long-term health of the system is threatened both by a flood of patent applications and an "explosion of sometimes-abusive litigation".
Since the infamous Eolas patent, Microsoft has increasingly been feeling the heat. And they apparently spend around $100 Million a year defending patent suits. So if they are finally starting to question the wisdom of the current system, let us hope that legislators start listening to the ISVs and FLOSS developers too - and maybe Europe can avoid a similar disaster. There is still time...
