A software development pressure group has slated a report published this week by the European Commission ICT Taskforce into intellectual property rights, saying it wrongly promotes software patents.
The Foundation for a Free Information Infrastructure (FFII) claimed the report into intellectual property rights (IPR), which recommended the use of software patents by small firms, was written almost entirely by the patent industry and large firms, including SAP's patent lawyers, US firms including Microsoft and the European Patent Office.
The report, called "IPR for competitiveness and innovation", found that small firms are increasingly reliant on patent protection; that European SMEs, particularly start-ups, use patents as core assets; and that increased software patents in the US have not hampered innovation in the US ICT sector. "IP protection, in particular patent protection, is critical to the success of many technology-driven SMEs as it enables them to attract investment capital and to access finance," said the report.
However, the FFII disagreed strongly with these findings. "These claims are forcibly contested by SME organisations, who point out that software patents punish the IT SME sector, while giving large firms a key grip on the market," said the FFII on Thursday.
The ICT Taskforce was set up by the Commission as part of its push to create a stronger business market in Europe. The IPR working group was made up of representatives from large IT firms and trade bodies. European Commission officials were present, but only as observers.
Software patents are a contentious issue in Europe, where they may not currently be granted. Last year, an attempt to legalise software patents in Europe failed, after campaigners argued that the proposal would allow patent-owners to monopolise the software market.
Microsoft has claimed that patents are a currency of European business. In an interview with ZDNet UK on Monday, Microsoft International president, Jean Philippe Courtois, argued that patents improve business for SMEs.
"Patents are a currency," said Courtois. "We try as a company to evolve the licensing of patents between large and small companies, providing skills which are being used more and more."
But FFII UK director Rufus Pollock claimed that this statement was self-serving, as Microsoft already holds many patents that it wishes to license to an untapped SME market.
"Microsoft holds a huge number of software patents. Most people protect innovative investment through copyright," Pollock told ZDNet UK. "Patents just give a more powerful monopoly."
Pollock said that copyright was a "more nimble" way to protect intellectual property, as copyright was automatically conferred on the author or developer, whereas patents needed to be applied for. He said that patents are inappropriate for software development as ideas tend to be generic, and that the real effort comes in developing the code.
"Cheap software patents act as a tax on those who have expended the real effort in developing real, and expensive, running code," said Pollock. "Writing the code is much more time consuming, and copyright covers the code. Software patents actually stifle innovation," Pollock added.
The FFII also argued that the ICT taskforce seemed to have a disproportionate number of representatives from very large and often non-EU-based enterprises, given the importance of SMEs in the European software industry
"This is rather ironic given the focus on SMEs in the report," said Pollock.
The FFII also called the report "particularly insulting" to small IT firms, saying that the report accuses small IT firms of having "a relatively inadequate understanding and general knowledge of the patent system".
FFII president Pieter Hintjens said: "This report is a mockery and an insult to all those who participated in good faith."
Talkback
The article says that software patents may not be granted in Europe, but of course they may - and have been for a long time. The main difference between us and the US is that a granted software patent here is of rather less certain validity downstream. In particular, the UK Courts have adopted a (sadly unusual) rational interpretation of the EPC and an economically informed position on software patents lately, but the good work of Lord Justice Jacob and his colleagues will be for nothing if initiatives such as EPLA are successful.
http://www.ffii.org.uk/archives/30
The report's assertion that SMEs have "a relatively inadequate understanding and general knowledge of the patent system" may be considered insulting by some, but there is some (ironic) truth in it. If SMEs have been unable to afford them, or have simply not been in the habit of using the services provided by patent attorneys, they certainly aren't likely to have ever engaged the services of a professional patent system economist.
plh.
While not being clear of the point being made in PH's last paragraph, Patents and Patent Experts are likely too costly for many SME's whose budget and focus is not quite the same as Big Businesses. Therefore the propsals from this study by a self interested group do not represent or safeguard the intersests of SME's at all.
"We try as a company to evolve the licensing of patents between large and small companies, providing skills which are being used more and more." Quote from M$'s Courtois.
What does this quote mean in plain English?
"While not being clear of the point being made in PH's last paragraph"
My point was that SMEs need to consider not only the complex issue of whether or not they can afford to and will benefit from an investment in acquiring and managing patents (or even must do so), they also need to consider the even more complex issue concerning how current and proposed patent policy and legislation will affect them and their industry. But those are two very different issues.
For example, given any static situation w.r.t. what is and isn't patentable subject matter, seeking the advice of a Patent Attorney would be a very good idea. In considering what if anything to do about legislation concerning patentability, it would be foolish to seek the advice of a P.A. (or a trade assoc. or political party whose position is determined largely by P.As).