What do you expect patent attorneys to say about software patents.. No surprise there of course. What is surprising is that supposedly very intelligent people manage to completely fail to understant the situation.
The Inquirer published this article about a statement from Marks & Clerk. Since our dear patent attorneys have so much trouble making sense of the situation, lets help them a bit.
I'll quote a few parts from the article and point out where the problems are that those people seem to be having.
John Collins, a partner at UK firm Marks and Clerk said: "Torvalds and his supporters lack a fundamental understanding of intellectual property rights as they seem to be unaware that copyright can only protect software code and not software".
Copyright is supposed to protect the expression of an idea, not the concept or idea itself. As a result, copyright protects both the software and the source code because both are expressions of the underlying ideas.
Patents are supposed to protect an implementation of a novel idea.
In any case, Linus is aware that the ideas or implementations of those ideas are not protected as such, but the source code and compiled code are.
The mistake our attorneys make here is assuming that this is a bad thing, while in practse it proves to be a good and very inspiring thing.
He claims that open source developers and the Polish government are misinforming the IT industry and "serving only to endanger genuine inventions".
There is no reason to believe there is any need for stimulating invention in software development by the granting of temporary monopolies. It has been suggested that the exact opposite is true, such monopolies would hinder invention, not stimulate it. Also, there has not been a lack of invention in software without the lack of patent protection, if anything, the rate of actual inventions in software in the USA seems to have dropped since the introduction of patents because of the time and resources lost on preventing patent infringement on trivial and well known techniques in software.
Monopolies are bad for society as a whole, they prevent competition, resulting in less invention and higher prices. The only people for which this may be good is those who hold such a monopoly. Because it also allows a succesfull inventer to sit down and comfortably license his patent to others without doing anything usefull otherwise, its effect on stimulating invention is very limited.
Because of this, we have to be extremely carefull with regards to allowing them, only there where needed, and only when the benefits are high enough.
A patent makes sense when an invention inherently involves relatively big financial risk, for example due to the equipment needed for research and implementation. Development of software does not have such an inherent risk, it can be done by anyone with enough time and a computer.
He said: “Linus Torvalds (creator of Linux) has recently made a statement claiming that the Directive would broaden the area in which patents would be granted. This is simply a false assumption. The original proposal was solely designed to clarify and unify existing practice in the EU.
The current directive does not allow for software patents, plain and simple. The EPO has been ignoring this part of the directive, and now we have an attorney rguing here that because the EPO ignored the directive, the directive should be changed to match what the EPO is doing? Mister Collins should really know better then that. At any rate, it was an attempt at broadenign the directive to change parts where the EPO has been ignoring the current directive.
However the current version – as a result of amendments made by the European Parliament – will result in patent holders in certain areas losing a significant element of protection meaning that some existing patents will become worthless.”
What they mean to say here is that some people are bound to lose patents they should not have had in the first place. Yes mister Collins, if you take something to which you have no right, you have a chance of it being taken away from you, and the current directive is pretty clear with regards to what can be patented.
I understand that software patents offer an interesting business oppertunity for a patent attorney, but that is really not a very good argument for the rest of society.