Sanity's Journal: YAswpatL

Yet Another software patent Letter.

This one was for a friend of mine who asked me to give him some initial direction in writing a letter to his MP. I thought I would share it here as I think it is my best attempt yet to introduce the dangers of software patents, and others might find it a useful source of inspiration for their letters:

Dear xxx,

I am writing to you as a professional software developer to bring to your attention my growing concern over an issue which I believe could seriously hurt my profession, not to mention the wider public interest.

Current Department of Trade and Industry policy is to support a change in European Patent law which, had it been implemented 15 years ago, would almost certainly have delayed or even prevented the emergence of the Internet, and many other innovations which we now know to be hugely important technological advances.

Under the guise of a clarification to EU patent law, special interest groups have put pressure on the European Union and national governments to extend the traditionally limited range of things that can be patented to include "computer implemented inventions", in other words, patents on software. In study after study, software patents have been shown to inhibit innovation and stifle competition wherever they are permitted. It is not just software engineers like myself that are expressing concern, the US Federal Trade Commission[1] and a growing number of respected economists[2] share my views.

[1] http://www.ftc.gov/os/2003/10/innovationrpt.pdf
[2] http://www.researchineurope.org/policy/patentdirltr.htm

The purpose of patents are to encourage innovation, so you might wonder why the extension of patents into the software arena will have the opposite effect. Patents are well suited to fields where new innovations require years of research and large amounts of capital, however this is not the case with software. Every new innovation in software builds on a multitude of previous innovations, and even a single software engineer might solve hundreds of small problems in a single day of programming. Against this backdrop, the notion of the programmer seeking a 20 year patent on each of those small solutions is clearly ridiculous.

Worse still, imagine now that this programmer is forced to ensure that every small innovation they might want to build upon is not covered by someone else's patent. The programmer might need to conduct hundreds of patent searches in a single day of programming, and even then they would have no guarantee that they aren't violating a patent! Clearly this situation would be ridiculous, yet this is exactly the situation that programmers in the US and Japan now find themselves, and is exactly the situation that current UK government policy will impose on European Software developers!

Given that it is impossible to write software without risking the violation of software patents, and given that unscrupulous people will inevitably abuse the patent system to obtain patents on trivial building blocks of computer science (as has happened in other countries), software development, indeed innovation itself in the software field, becomes a very risky business. There are a multitude of examples where large corporations have used their massive patent portfolios to exclude smaller competitors, and even cases where specialist companies extort money from innovators using patents on obvious techniques.

Even large companies are not invulnerable to such parasitic practices. In the US, Microsoft is currently fighting against a small company called Eolas who have acquired a patent on an obvious technique fundamental to the operation of any web browser. This company, if successful, will be able to extort a tax on every company and individual in the United States that uses the Internet! It is worth noting that this company's only purpose is to generate revenue through extortion using this patent, they have never written a line of computer code, nor do they have any intention of doing so.

The first attempt to impose software patents on the European Software Industry was met with stiff resistance from the software development community, and as a result amendments were made to the draft directive by the European Parliament in September 2003 to address these concerns. Unfortunately the European Council of Ministers now has the opportunity to rewrite this draft, and thus it is essential that we persuade the UK's representative in this discussion, the Department of Trade and Industry, of the dangers of software patents.

But why is current UK Government policy so misguided? The DTI's current position is primarily dictated by the UK Patent Office. Unfortunately, the opinion of a patent office on software patents is analogous to the opinion of an arms dealer on war, they simply can not be treated as an impartial source of advice on this issue. For example, in 2000 the UK Patent Office had a consultation on the introduction of software patents. Despite an overwhelming negative response to this consultation, the UK Patent Office ignored the opinions of software developers and now use this consultation to support their pro-patent position!

As a software innovator, I am exactly the type of person that would applaud software patents if they achieved their stated purpose of assisting innovation. The simple reality, however, is that they achieve the opposite.

I hope that you can bring my concerns to the attention of those in a position to avert this disaster before it is too late.

Yours Sincerely,

yyy.