Software patents: not here, thank you

A short time ago, IT Week ran an interview with a Microsoft executive who put the case for software patents. He argued that patents drive progress in other fields, and so the same should apply with software.

Surprisingly, considering this magazine’s readership, we have received little response to this article. Is the case for software patents now considered uncontroversial, or did readers simply think the argument too contemptuous to be worthy of a reply?

IT professionals really ought to be more concerned, because patent disputes can seriously disrupt the users of technology. To take a topical example, the impending threat to shut down RIM’s BlackBerry system in the US will leave many organisations in the lurch.

Who exactly benefits from patents like this? Certainly not American BlackBerry customers, many of whom now have to deploy alternative wireless email systems at short notice and great cost, in case the worst happens.

In fact, this is a very good example of just what is wrong with the US patent system: it grants overly broad claims that may allow the holders to monopolise an entire area of technology.

While RIM has pioneered wireless email and delivered the benefits to millions of users around the world, its rival in this dispute sells no products, but exists simply to make money from patents.

Legally, the firm is perfectly entitled to do this, but it makes nonsense out of claims that patents drive progress. I would argue that the converse is true: in the US at least, patents seem to have become a tax on innovation.

In the UK, patents have traditionally been granted to protect quite specific physical inventions, which the applicant has invested a great deal of time and effort in perfecting. Software patents have so far been excluded – and in my opinion should continue to be excluded – because they all too often represent the mere translating of existing business processes into computer code.

Furthermore, there are often a limited number of ways you could implement such processes in code, making it hard or impossible for rivals to build a competing product that achieves the same end without infringing the patent. This inevitably stifles competition.

Microsoft’s argument that software patents will “lead to a predictable legal infrastructure” is absurd, since there can only be litigation over software patents once they are allowed. A cynic might suggest this is why it is so keen on them; giants like itself can afford to indemnify their customers, and this might draw risk-averse firms to its products rather than those of a smaller rival.

Now, I’m not suggesting that all patents are bad or that software firms shouldn’t have the right to defend their products against theft or copying, but we already have copyright law to do that. Microsoft and others might argue that copyright does not protect the ideas and concepts behind products, but since when has anyone had the right to a monopoly on ideas?