The Software Patent Conundrum

Opinion: The software industry has been around for almost fifty years, time enough for the world's legal systems to figure out how to protect the intellectual property rights of software. But no. As the EU tosses out its software patent process, th

Patents pose a simple question: Should an idea be protectable and, if so, how should it be protected and for what period of time? Youd think that as important as ideas have become and how long theyve been around—like forever—that by 2005 wed know how to protect them.

Not so. And whats happening in Europe is a pretty good indication of how far we havent come. The EU parliaments legal affairs committee this week put the effort to create new patent law back to square one. This is seen in some circles as a win by open-source advocates and a loss for the big software companies.

Both sides of the debate in the EU claim they want no part of a U.S.-style patent system, rather their differences can be found in how liberal the final regulations will be drafted. Open-source proponents want no software patents at all, while companies whose names youd immediately recognize want some degree of patentability.

Europe has traditionally been less-friendly to intellectual property claims than the U.S., from which much of the worlds IP law has sprung. Software patents, sometimes very controversial in the on this side of the Atlantic, have been slower to catch on in the EU.

The basic argument is the same that the open-source advocates always trot out: Patents lock up good ideas that should be freely available for use by anyone.

On the other hand, big companies—which happen to own most patents—are not supportive of this approach. Understandably, they say that its the patents themselves that spark innovation by offering a reward for those companies with the best ideas.

To better understand this complex issue, I spent a long while talking with Greg Aharonian, a buddy whos a frequent patent critic and writes the Internet Patent News Service. While he frequently criticizes the patent system in the U.S. for its unwieldiness and unclear regulations, he remains an optimist, believing that patents are still the best hope of protecting and supporting real innovation.

Like the U.S., European patent law is often confusing and seems to run in circles. The goal of the open-source proponents, at least for some, is to make software non-patentable. They believe copyright protection alone is enough.

The distinction is important, according to Aharonian. Patents are about protecting ideas while copyrights are about protecting the expression of ideas. This strikes close to the difference between art and science: Art is something most people know when they see it but find maddeningly frustrating to express.

Essentially, a patent protects a specific idea that can be described on paper. A copyright protects the expression of that idea—its use—but not the idea itself.

For software, this means someone can use a bunch of other peoples ideas, implement them differently, and copyright the final work as their own. A patent, meanwhile, would protect the ideas themselves, requiring a license for their use.

If you come up with lots of original ideas, then you want patent protection for them. If you create finished works, then you might prefer copyright, because it allows free use of ideas and protects their final expression. If youre not very inventive—which for Aharonian includes most of the open-source movement—then copyright would be your choice.

Proponents of open-source software generally like copyright because it gives them lots of freedom without worries of infringement. They contend that an invention like the cotton gin and other physical objects are different than the concepts expressed in software code.

Companies such as IBM, inventors of the modern equivalents of cotton gins, want to protect their inventions—and the frequently huge investments needed to bring them to market. They prefer the protection of patents.

/zimages/6/28571.gifIBM just widened the discovery phase in its Unix/Linux intellectual property cases with SCO, seeking evidence from Intel, Target, Sherwin-Williams, Oracle and others. Click here to read more.

Aharonian contends that patents, because they require the idea to be expressly stated and filed publicly, can spark others to create a better and non-infringing arena. Furthermore, in the U.S., patents are valid for only 20 years and often effective for only 5 or 6 years, after which the ideas go into the public domain.

However, the term of a U.S. copyright is now 100 years, largely due to the efforts of the Walt Disney Co., which pushed an extension through Congress whenever the copyright on Mickey Mouse is due to expire.

Thus, copyrighted open-source software actually has more protection than patented software.

For Europeans, the decision is what level of protection to provide. At present, IP protection there is seen as weak, a situation that supposedly benefits smaller businesses and open source developers.

The choice is a political one. And just as the Europeans seemed to have reached one, the EU did an about-face and is going back to the drawing board. Good luck to them.

For me, their choice is obvious: Patents, but with a system behind them that is much clearer and easier to implement than the very-messy U.S. patent code.

/zimages/6/28571.gifFor more insights from David Coursey, check out his Weblog.