Sir Robin Jacob, a judge at the Court of Appeal who specialises in intellectual-property (IP) law, has questioned whether patents should be granted for software.
"Do we need patents for computer programs? Where is the evidence for it?" said Lord Justice Jacob, speaking at a seminar for the Society for Computers and Law on Thursday evening in London.
The need for software patents has been questioned by campaigners such as the Foundation for a Free Information Infrastructure (FFII), but few studies have investigated this issue. The European Commission has funded a study on the legal, technical and economic effects of software patents on innovation, but this study is not due to be finished until 2007.
Last year, the European Parliament rejected the directive on the patentability of computer-implemented inventions, which became widely known as the software patent directive. Many claimed that this directive could lead to the widespread patenting of software, as is the case in the US, whose patent system Jacob was critical of.
"The United States takes the view that anything made by man, under the sun, can be patented. And they have granted patents for business methods, mainly computer business methods, but as far as I can see it would cover a new and improved method of stacking oranges on a barrel," said Jacob.
Justice Jacob said that IP rights are often justified on the "pragmatic grounds" that they encourage research and development, but said that people have "got to look at all IP rights critically and say, 'do we need them?'"
One aspect of the patentability of computer programs that Justice Jacob said gives him "considerable concern" is the searching for prior art.
"It's been said that [searching for prior art] is all going to be sorted out and will be very easy in due course — I don't believe it. And some of the fuzzy patents that have emerged from the United States tell you that it's going to be very difficult to stop very ordinary things from being patented," he said.
This is a question of policy, rather than a legal question, according to Jacob. However, he admitted that he was glad that he hasn't had to consider any software patent cases in the Appeal Courts yet.
Criticism of the US patent system has been mounting recently. Last week, IBM said it will participate in a number of initiatives to improve patent quality, and a number of other patent holders in the US, including Microsoft, have also called for patent reform.
Jacob claims to have also noticed a change in the attitude towards patents, and IP in general.
"IP rights themselves may have reached a bit of a swing of opinion. One is detecting public disquiet in a number of areas of intellectual property, asking: Are we going to far? There's a serious worry about patent offices and how you stop them granting pretty ropey patents," he said.
An MP3 of Jacob's talk is available here, on the Society for Computers and Law Web site, and can be downloaded for a one-off charge.
Talkback
There are very good reason for dreading software patents, so the judge is very right, which is fine and surprising, as he is not a IT-educated person and has had to read a lot in order to understand the problem.
The thing that surprises me is however that there are no comments on this in the UK.
Lots more in the USA.
"The thing that surprises me is however that there are no comments on this in the UK."
We in the U.K. /expect/ our Judges to be wise, intelligent, honourable and highly competent in their fields. Judges Jacob and Prescott are clearly earning the outrageously huge salaries they draw and so there is nothing much to be said. ;-)
There is an error in the article, the European Parlement and the commision have both already funded research into software patents.
Yet the European Commision puts reports that are not supportive of software patents in a driawer.
When will also these people in the European Commision stop with there dreams about patents. Who ever came up with this fairy tale that patents are an improvement for innovation. In the field of software they are not.
Now another round of research. They heard it OVER and OVER again. Small and Medium sized companies are not interested and will not benefit from software patents. The only companies that benefit are companies that buy truck loads of patents and then sue small players there pants of. Pay or see you in court. Or it are companies that have money problems so they do a "reinventory of the I.P.".
Read this:
http://www.groklaw.net/article.php?story=20060115145429444
and this
http://www.groklaw.net/article.php?story=20060111223959235
And groups like EICTA and BSA that claim to represent small and medium size business pushing for broad software patents don't represent us. They are rather represent large companies.
This is the time for a new deal. What has been called property and quite rightly so sometimes can no longer be possessed. Or controlled. This reaches far down to the way how we believe menkind is to live together. And as always - dispite all drawbacks - the end of the development will be an increase of freedom for more...
I am an intellectual property, IP, owner. I have copyrighted 56 computer programs. I can sue anyone who re-produces my work for commercial gain that didn't get a license from me for my permission. The reason why I haven't sued un-licensed companies is because I didn't want to stiffle the computer revolution. I think copyrights (not patents) are the tool to use for computer programs. Patents are granted to stimulate the market place and if the patent owner does not market a product based on the patent he loses his right to the patent to a company that will produce a real product. This rule was brought by president Ronald Regan so patent owners could not just "sit" on patents
and then sue if some company brought out a product based on "their" patent.
Two companies did bring a similar patented product to the market at about the same time and the courts choose one company to market first, until one million products were sold, then the other company could enter the market legally. It's easier to get investor money for patents than for copyrights, sadly, so I see a need to change that so smaller companies with truly new computer programs will get to market on a national scale.
I believe if I enter the fray on this issue I could bring alot of clarity.
I also believe that computers have matured to the point that truly new marketable products will become more and more rair so why bother with the software patent issue at all.
Try to research prior art with DRM in place ;)
Anyway, software patents won't help technical innovation. Instead it'll force you to reswallow the same old, same old and like it too. Because what other choice would you have then? Small budgeted competition? They'll be tied down in court. Open source? Outlawed for violating software patents. The government? They made it a law. The EU? Lobbied. You? You voted for that, didn't you. OK, that's not how you understood it but that wouldn't change the facts. Once made reality by means of laws and regulations it won't be easy at all to turn the boat around.
So what possible reason would there be to cut down on profit margins by means of R&D budgets if such investments are much better spend by allocating them to the legal departments?
Zill. None. Nada.
Ah well, maybe for PR reasons. But in reality they'll buy what they need to dazzle your eyes this time around. Usually that'll be something not new at all but something you weren't aware of all those years before.
Same old engine. New paint job though. But we'll throw in a new car radio this time around. Our own brand that mostly likes music made with our products so we can tell music producers that most of the market is using our car radio products so why bother with other brands. Enjoy and see you next time. Then we want to talk to you about your ability to drive when you please and us not getting a margin for that privilige. After all, wouldn't it be so much safer if we decide for you if it's safe enough for you to drive or even to drive in a particular direction? You may need our brand driving license by that time. It won't cost you, you'll only need to sign a little agreement. But it's optional. Because you'll always have the choice of keeping your old car with higher rising maintenance costs and increasing loss of functionality as months and years go by. And if you can't effort it. Walk.
The judge has since given judgment in the Aerotel/Macrossan case (see <a target='_blank' href='http://www.patent.gov.uk/2006ewcaciv1371.pdf'>http://www.patent.gov.uk/2006ewcaciv1371.pdf</a>) where at paragraph 20 he said -
"Fourthly despite the fact that such patents have been granted for some time in the US, it is far from certain that they have been what Sellars and Yeatman would have called a “Good Thing.” The patent system is there to provide a research and investment incentive but it has a price. That price (what economists call “transaction costs”) is paid in a host of ways: the costs of patenting, the impediment to competition, the compliance cost of ensuring non-infringement, the cost of uncertainty, litigation costs and so on. There is, so far as we know, no really hard empirical data showing that the liberalisation of what is patentable in the USA has resulted in a greater rate of innovation or investment in the excluded categories. Innovation in computer programs, for instance, proceeded at an immense speed for years before anyone thought of granting patents for them as such. There is evidence, in the shape of the mass of US litigation about the excluded categories, that they have produced much uncertainty. If the encouragement of patenting and of patent litigation as industries in themselves were a purpose of the patent system, then the case for construing the categories narrowly (and indeed for removing them) is made out. But not otherwise."
(I have commented upon this further at <a target='_blank' href='http://www.ukcorporator.co.uk/legally_irrelevant_considerations.php'>http://www.ukcorporator.co.uk/legally_irrelevant_considerations.php</a>)