European patent tricks

The bad news: they want to do it. The good news: what they want to do is maybe not as bad as the current situation in the US, where badly awarded patents have been a major problem in the last decade.

Patenting is intended to grant inventors a period of exclusivity (currently 20 years) in which to exploit their inventions. It's the reason Trevor Bayliss can make money off his wind-up radio, for example.

Unlike copyright, which has been used to protect software in Europe until now, patents allow you to protect an idea, rather than merely the expression of an idea. You cannot patent the contents of a book, for example; but if the book itself were invented now, doubtless someone would patent it. In fact, in order to get a patent at all, you must disclose the details of your idea, and your application becomes part of the public record ( Here).

Until 1981, you couldn't patent software in the US either, and it was typically copyrighted. At that point, a a Supreme Court decision known as Diamond v Diehr allowed the inclusion of a software program in a process for manufacturing rubber. The Patent Office interpreted that decision liberally, and by the early 1990s, software patents were proliferating wildly, to a great deal of opposition from the free software community, led by Richard Stallman ( here).

There have been some really weird patents (and resulting lawsuits) in the last few years: Amazon.com sued Barnes and Noble for copying its patented "one-click" shopping technique; Priceline.com sued Expedia for copying its name-your-own-price plan; Unisys went after the whole Web community because its patented LZW compression forms a small part of the popular GIF picture format. (In case you were wondering why everyone suddenly started using JPEGs, that's why.) To be fair, no one disputed that Unisys had the right to patent its compression. What was considered unreasonable was thinking that people could possibly have known that there was a problem. If it was anyone's fault it was CompuServe's, which invented GIF back in the early 1980s to help people exchange pictures on its service. Now every Web user is supposed to check that his ISP or software publisher has paid for a licence?

That sort of thing is why the open source community ( here) has been so adamantly opposed to patenting software. It becomes impossible to know what parts of the software you're writing might infringe on someone else's work. Copyrighting software allows you to control how and whether it may be copied; patenting it allows you to control whether anyone writes software that has the same effect. If the first spreadsheet, VisiCalc, had been patented, Lotus 1-2-3 and Excel might never have been allowed to happen.

The European proposals have several clauses that seem intended to avoid creating a similar situation here. First, any software that is patented must have taken a technical step forward that is non-obvious to those who know the field. This is likely to rule out patenting straight business methods. There are some other limitations discussed in the proposal. Abstract algorithms, for example, that are descriptions of processes and are not "technical", can't be patented. In addition, most intellectual property experts say that Europe is far more rigorous in searching for "prior art" to ensure that the patent under consideration is not granted for work that is not new. This is another area where the US Patent Office has failed badly in the last decade. Patents can be revoked, but in the US this involves taking the claimant to court to get it struck down, an expensive and often lengthy process.

It's clear that the real story in software patents lies in who is in favour of the damn things. Big companies - IBM, Intel, Microsoft - generally like software patents because it allows them to build up a base of patents that they can either license to other companies (for money) or cross-license (to gain access to other companies' technology). Small companies, open source advocates, and even software programmers tend to be against them because the upshot of patenting software may well be to lock them out of software development. BT's recent claim to have patented the hyperlink is a case in point ( Here).

Europe likes to believe that it's so much more sophisticated than the US and that it can do what the US does without suffering the same consequences.

The EC's reasoning around its software patent proposals betrays exactly this kind of thinking. In the US, that's the popular definition of insanity.

* AS A FOLLOW-UP to my column two weeks ago ( here) I note a story in yesterday's Independent suggesting that the UK Passport Office is eager to get in on David Blunkett's "entitlement card" act. They want "smart" passports - credit card sized and laced with biometrics. Hey, here's an idea: if we combine it with the "entitlement card" (which of course doesn't exist yet), we can all save money! Whoopee! Let's not focus on the card, folks, let's focus on the nice fat, merged database behind the card. Fortunately this is the IT industry, so the thing will take years to build and then fall over at the first available opportunity. µ

Previous Columns
Watching the Internet watchers
Big Brothers
The Sound of Money
Battle of the titans
By any other name
Creative Accounting
Dumber people can run Windows
2001 in review
Care in the community
Remembrance of postings past
BT's Stupid Patent Tricks
Preserving our freedoms
It's beginning to look a lot like Christmas
Net is the mother of re-invention
Save the Cookie
Digital rights and the new era of world terrorism

Wendy M. Grossman, whose Web site is pelicancross ing.net, is author of From Anarchy to Power: the Net Comes of Age (NYU Press, 2001), net.wars (NYU Press, 1998), and the Daily Telegraph A-Z Guide to the Internet (Macmillan, 2001). She can be reached at this email address.

Copyright on all articles published in the INQUIRER is hers.