Patents have become a hot topic over the last year, due to the controversy surrounding a proposed European directive that will change the legal framework around software patents.
The proponents of the directive, which include the UK Patent Office (UKPO), claim the directive is needed to clarify the law and will not allow the patenting of software per se. But opponents of the directive, which include many software developers, small software companies and a number of MEPs, are concerned the directive will open the doors to the widespread patenting of software.
Even if the directive is amended or rejected by the European Parliament in its second reading in July, technology patents are still an issue for small to medium-sized technology companies, which may wish to file patents or may be at risk of violating the patents of other companies.
The patent office and the government in the UK are keen for small and medium enterprises to use trademarks, copyright or patents to protect their intellectual property. The UKPO claims that companies can gain various advantage through patents, including protecting their research and marketing effort in developing a product and an improved ability to obtain venture capital funding.
But the UKPO admits that the patent system can be less accessible to SMEs and is working on possible solutions to this issue. "Getting a patent is expensive. Once you've got it, you need to enforce it. We have been made aware of the difficulties that SMEs may face in defending patents," says Lawrence Smith-Higgins, the head of awareness, information and media at the UKPO.
The problems that SMEs face with both filing and enforcing patents means that large companies tend to file disproportionately more patents than small companies. For example, a study earlier this month by Colorado College in the US, found that only 20 percent of patents issued by the European Patent Office are held by SMEs, despite the fact that SMEs are responsible for half of Europe's turnover.
The costs of filing a patent
Although a "fair proportion" of people file patents without the help of patent attorneys, Smith-Higgins says that legal help is generally advisable. "It's not the type of thing you can do yourself," he says. "A patent attorney will be earning money for drafting claims. It's no good having a granted patent if someone can get around the claims."
A call to the UKPO enquiry unit revealed that it dispenses similar advice to customers regarding legal-help. "You can do it yourself. But your success rate is going to be a lot higher if you use a patent attorney — they work on patent specifications on a daily basis," said the customer services assistant.
Talkback
Looks like some happy few are hoping that the politicians will be stupid enough to simply hand them on a silver platter a complete new international market that they have the monopoly over.
And on top of that rows of rich, mostly overseas, internationals that will stumble over eachother to get their hands on anything they can.
But, as they say, to make a few people richer you need to make lots more poorer.
And that is exactly what this patent thing is boiling down too. Some want to be the arms dealer in this legal arms race and some are looking to conquer new lands and profits. But what's left then for the rest of us?
Maybe the captains of industry see a glorious future in this new legal war they envision. But what about the soldiers, corperals and sergeants? Is it really the case that the politicians are telling the generals what they can and can't do or is it vice versa?
Ignoring the tricksy "per se", that the UKPO/EPO use to pretend (absurdly) that they were talking either about written source code or about whole applications or about some phantom "non-technical" kind of software, when they are forced into a corner, it is a simple fact that the unamended directive will *codify* the EPO's legally questionable practice of granting software and biz method patents.
Never mind what the opponents of the Council version of the directive say: just read any independent analysis, such as the EESC opinion or Rossi's paper. Still not convinced you can patent the same software and biz methods at the EPO that the USPTO notoriously allows? Go to amazon and get yourself a copy of Keith Beresford's book, which tells you exactly how to do it, or read this:
http://www.european-patent-office.org/epidos/conf/patlib2000/presentations/beresfordk.pdf
Or look in the EPO and UKPO databases, which already hold around 50,000 software and biz method patents. So how exactly did they get there if they're "not allowed"? And just how exactly will the directive stop the recent avalanche of more of them, if - as claimed - it makes no changes to what the EPO considers patentable? This disgraceful and underhand attempt by the EPO and UKPO to sow confusion about what is really going on and what they intend the directive to achieve, is one of the most depressing aspects of this issue. The door is already wide open - the directive is intended to rip it off its hinges.
"How not to do it. In this was to be found the basis of the wise system, by tooth and nail upheld by the Circumlocution Office, of warning every ingenious British software author to be ingenious at his peril: of harassing him, obstructing him, inviting robbers in the guise of "IP companies" to plunder him, and at the best of confiscating his property after a short term of enjoyment, and giving it to the few largest companies, as though invention were on a par with felony. The system had uniformly found great favour with the Barnacles, and that was only reasonable, too; for one who worthily invents or writes innovative software must be in earnest, and the Barnacles abhorred and dreaded nothing half so much.That again was very reasonable; since in a country suffering under the affliction of a great amount of earnestness, there might, in an exceeding short space of time, be not a single Barnacle left sticking to a post."
From "Little Dorritt (for the modern reader)", by P.L.Hayes.
Thanks for info. We're a small software company and used the services of a legal firm specialising in patents on the advice of a government-backed advisor.
The experience was very expensive and bruising.
For anyone thinking of applying for patent on software, here is our experience.
First, trusted third-party advice is that up to 60 per cent of any software created will be stolen and modified/reused within four years - even if it is patented or patent application is filed.
Second, the legal profession work by the second and charge highly for their "expertise".
Third, we entered the process with the legal firm in good faith. When we decided not to pursue the patent application (at a MINIMUM cost of £4000 plus VAT), we were hit by an invoice for around £800. This was for the legal firm's time in looking at our hard work (all the patent searches we had done globally), a two-hour meeting with two legal representatives to discuss this, and a promise of a full questionnaire after agreement to pay the minimum £4000 (with no ceiling and no advice on how high the costs would go).
Fourth, a trusted third-party with experience in this field advised that we would need at least a £2 million "war-chest" to protect our patent.
So, our conclusion is - please, think very carefully before you enter into any patent process.