OneWorld.net (U.S.)

"He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." - Thomas Jefferson

To the lay person, patents typically conjure up an image of an eccentric scientist toiling in his garage to 'build a better mouse trap'. It is a stereotype that advocates of strengthened patents love to promote because it keeps the illusion going that their intention is to protect the small inventor. But that couldn't be further from the truth.

Most software patents are held by large corporations, predominantly from the US and Japan, according to research from the Foundation for a Free Information Infrastructure (FFII).

These corporations, together with supportive patent offices are pushing forward new legislation in the European Union that copies the US model of allowing patents on 'computer implemented inventions', (i.e. computer software).

Surprisingly, in spite of this support from government and business institutions, there isn't a single study that concludes that software patents are economically beneficial. Indeed, a report from the US Federal Trade Commission expresses concerns over the damaging effects of software patents in the US.

The support from patent offices becomes a little easier to understand when you take into account the fact that most patent offices, including the UK's (pdf), are funded purely from patent processing fees. So a growth in the number of patents directly benefits them.

Described as a minefield for the software developer by Free Software guru Richard Stallman, patents differ from copyright in that they can be accidentally infringed. Even if a developer comes up with a patented idea independently, he or she could still be sued for damages by the patent owner.

The only way for an independent developer to avoid the patents 'minefield' would be to meticulously search patent files. But that’s completely impractical. Every working day, programmers work through scores of ideas - and a search of any one of these could take up the whole day. It's clearly an impossible task for that solitary boffin pottering about in his garage.

Large corporations, however, can avoid this burden by 'cross licensing' their patent portfolio with that of other companies: that is to say, by striking a deal allowing each to use the other's patents without worry of litigation.

The irony is that patents were originally intended to promote innovation. But imagine if patents had been applied to the field of music. If the twelve bar blues had been patented back in the 1900s in the US, would we have witnessed the same melting pot of musical styles over the twentieth century that led to rock 'n' roll? It seems unlikely. And computer software evolves in the same way as music, with current ideas being combined and re-combined in innovative ways.

Implications for poorer nations What makes the issue of software patenting more vital still is the powerfully inhibiting effect it can have on the developing world. The new information and communication technologies (ICTs) offer important new opportunities for economic development in poorer nations.

It is vital for these nations to access the benefits of ICTs – improved efficiency, processes and communication – now boosting developed nations. They also present a new export opportunity, as companies in richer nations increasingly outsource software services to countries like India where skilled labour is available at lower cost.

And the continuing success of Free/Libre Open Source Software (FLOSS), like the Linux operating system, is seen by many as a practical opportunity for developing countries to get a technological 'leg up', as these free systems can provide a basis for infrastructure around which services like consultancy, training, and customisation can be built.

But these promising opportunities are threatened by the expansion of EU legislation on software patents. Its effects would not be immediate or direct, but in the longer term acceptance of software patents in Europe would be a key step towards a harmonised worldwide patents regime, enforced through the World Trade Organization (WTO).

In this future world (which is only round the corner), small software developers, in the global south as well as the north, will find themselves faced with negotiating that patents minefield, unable to compete with the vast patent portfolios of the global software giants.

The irony is that, during the 19th century, the US based much of its economic development on copying technologies from Europe - deliberately flouting the patents regime in place at the time.

Call to action If we are to avoid this future scenario, now is the time to take action! The FFII is issuing an Urgent Call to European national governments.

• Spread the word. Tell your friends, colleagues and business contacts about the issues and encourage them to write to their political representatives.
• If you are a UK citizen, write to your MP asking them to support the urgent call. See this page with sample letters.
• Read up. Learn about the issues. See the related links below.

Related links:

1. Foundation for a Free Information Infrastructure – Software Patents - http://swpat.ffii.org/
2. Wikipedia on Software Patents - http://en.wikipedia.org/wiki/Software_patent
3. Free as in Education. Significance of the Free/Libre and Open Source Software for Developing Countries - http://www.maailma.kaapeli.fi/FLOSSReport1.0.html

David Heath works for OneWorld.net as a software developer, where he builds the software which runs the OneWorld.net website. David is interested in the technology and philosophy of free/libre open source software and its role in international development.

---

OneWorld Guest Editorials represent the viewpoint of the authors and not necessarily that of the OneWorld Network.