The Scourge of Software Patents

The functioning of society is contingent upon a number of processes, many of which naturally conflict. The proper functioning of society depends on the balance of these conflicting processes. Maintaining this balance is the role of law and its proper enforcement. We have lived through what has been termed the information age, and the regulation of this scarce resource is now more important than ever. Today, with computers, we are able to process enormous amounts of information extremely quickly, and therefore the programs that control these machines are of considerable importance and value. While the technological evolution in society depends on the sharing of information thanks to the idea of collective intelligence – the idea that the intelligence of a group can be greater than the sum of its individual members – traditional business practices rely on keeping ideas to themselves to give advantages over competitors. To this end, one of the main weapons in a business' arsenal has long been the patent.

The argument of whether computer programs are patentable has long been contentious, and there was a proposal for a law in the European Union called the “Directive on the patentability of computer-implemented inventions” that initially argued for making all software patentable. This drew heated fire from two opposing sides; supporters consisting of large companies such as Microsoft, IBM, Hewlett-Packard, and also the European Patent Office, and the opposition composed of diverse parties, from academics, lobbying associations such as the Foundation for a Free Information Infrastructure (FFII) to businesses and the more famous Sir Tim-Berners Lee, developer of the World-Wide Web.

Supporters of the proposal argued that “thousands of jobs were at risk because of opposition from the European parliament to a draft EU directive giving patent protection to scores of new products.” This stance has been characterised by the FFII as being “dominated by patent lawyers from the patent arms of large corporate members.” Opponents have attacked the proposal saying that while some software patents would be beneficial, it would generally hinder innovation and reduce competition.

The difficulty that software brings to patent law is that software is fundamentally different from traditional, tangible goods. The algorithms - which are basically descriptions of process - which lie behind such goods are comparable in form and function to cooking recipes. Historically, mathematical statements and proofs have been not been patentable, but these are different from algorithms in that they are declarative rather than imperative in nature. The World Trade Organisation's TRIPS agreement states that “(...) patents shall be available for any inventions, whether products or processes, in all fields of technology, provided they are new, involve an inventive step and are capable of industrial application,” so a major problem is deciding on whether algorithms can be classed as inventions.

Although unjust laws can wreak havok in the economy, just laws depend on the faithfulness of those that enforce them, and there is always a possibility that organisations may subvert the laws intentions. It is important that people are recognised for their innovations, but it is also important that large companies are not given too much leverage over the innovations of smaller companies and that distribution of knowledge is unencumbered. As with all laws, software patent law must continue to address this issue of balance.