Sanity's Journal: Letter to MP on Software Patents

A while ago I wrote to my MP, Mark Lazarowicz, on the issue of software patents. He forwarded my concerns to the Dept. of Trade and Industry, and he recently forwarded their response to me. Here is the reply I sent in response to the DTI's letter:

Dear Mr Lazarowicz,

I write in response to your letter of 13th January 2004 in which you were kind enough to pass on the response you received from the DTI on the concerns I raised on the introduction of software patents to the European Union.

As you might suspect, this response fails to alleviate my concerns.

The Minister asserts that software patents play a central part in developing and protecting new ideas. It is this belief with which I, and many others including respected economists[1], and even the US Federal Trade Commission[2], wholeheartedly disagree.

The Minister points out that patents have been granted on software-related inventions for decades. While it is true that the European Patent Office and many national patent offices have, in recent years (certainly not decades), granted software patents, they have done so against the terms of the European Patent Convention of 1972, which explicitly forbids them. This means that very few owners of software patents attempt to enforce them in the EU, as they cannot be certain that they would be upheld. Indeed, many national courts have revoked such patents, using the EPC as their basis.

It is surprising and very worrying that the Minister is unaware that the existence of software patents have significantly hindered growth in the software sector and in e-commerce[3], and if software patents are explicitly permitted in the EU, this situation will get worse.

The 2000 consultation to which the Minister refers is probably one by the UK Patent Office. A closer examination of that consultation would reveal that there was an overwhelming "no" response to software patents from industry professionals yet the UK Patent Office somehow managed to interpret this as an endorsement of their pro-software patent position.

Unfortunately, this is not surprising as national patent offices typically act in the interests of patent holders, not the overall public interest. For this reason the UK Patent Office cannot be viewed as an impartial source of information and advice on the software patents issue, and the Minister should be very wary of treating it as such.

Speaking personally, I recently moved my software development company from California to the United Kingdom, and one of my reasons for doing so is that in the US, where software patents are explicitly permitted, it is impossible to know whether you might be infringing a trivial software patent whenever you write software. Rather than encouraging innovation, software patents actually serve to inhibit it since you can never know when you might inadvertently infringe on someone's software patent whenever you do something new.

Further, as an innovator, software patents offer little protection since if you do obtain a software patents, large companies will typically use their patent portfolios to threaten you into signing a "cross-licensing" deal, which will prevent you from enforcing your patent against them. It is for this reason that in my entire career as a software innovator it has never once made business sense for me to obtain a software patent.

It may be worth adding that in August 2003 I was selected as one of the top 100 innovators in the world under the age of 35 by the Massachusetts Institute of Technology, and so I feel I can speak with some experience on what is likely to encourage or discourage innovation.

I am very grateful for your willingness to pursue this matter, I hope you agree that this issue is of fundamental importance in our increasingly information driven world.

Kind regards,

Ian Clarke.

If you are in the EU and you haven't contacted your political representative(s) about the software patent issue, please do it now - or we risk software patents being forced through right under our noses. You can find some useful information here to help you get started. If you are in the UK, here is a convenient way to contact your MP.

MP

[ryanr]

I take it you've made it over to Scotland, now?

Re:MP

[Sanity]

yup, been here since October

Re:MP

[ryanr]

So, the first I hear, you're fighting software patents. Are you finding the other freedoms over there an improvement?

Good for you, Ian

[Simon Brooke]

I've been writing to mine (and my MEPs), on and off for months. I've a feeling we're not going to win this one, but I don't want to feel, when we've lost, that I didn't do my bit.

Re:Good for you, Ian

[Halo1]

I think we actually have a quite good chance to win this one. There's a lot more public attention for this European directive than there has ever been for one before. The fact that we were able to win the European Parliament vote, proves that the majority of politicians are willing to listen to the voice of reason.

Unfortunately, most of the UK reps won't :/ Arlene McCarthy (socialists) and Malcolm Harbour (conservatives) have quite a strong influence... And even the Liberal Democrats voted largely in favo