Patenting software is not good for the IT industry and
can, potentially stifle IT innovation, says Sean Hanly
We usually think of patents as laws that preclude the
copying of new innovations in machinery, materials or chemical
products and processes.
But following the accusation that Amazon's web-tracking technology
has infringed on the rights of patent-licensing group BTG, IT
directors and in-house application teams are feeling the heat from
an increasingly litigious industry, with software as the new
battlefield.
Software can be copyrighted and patented, but the legal effect of
each is different. Copyrighting - protecting the source code -
seems fair, as opposed to patents. And copyright law - which
prohibits passing off someone else's code as your own - is a good
thing. This is similar to someone plagiarising a book or article.
Software patents, on the other hand, mean you cannot even have the
same plot line.
Because of the way technology develops, patenting is bad news for
the software industry. The internet and the associated technologies
that have revolutionised IT in the past decade are mainly
patent-free. Yet if web servers had been patented, would the
internet exist in the form it is today?
Fast moving industry
Software patents can last for more than 17 years in some countries,
but the software industry moves much faster. Change in the IT
industry is in the order of three to five years. Long patent lives
only serve to limit competition and innovation, not foster
it.
A US study into software patenting has revealed that research and
development was actually reduced rather than increased as a result
of the high percentage of software patents.
This is because software development is often about building on or
extending existing ideas. The absence of patents allows new ideas
to flood the market freely and forces companies to maintain a high
degree of R&D activity.
However, an industry heaving with patents means that patent-holding
companies have less propensity to innovate and independent software
developers are in constant fear of infringing these patents.
Some would argue that obtaining a patent is a good way for
companies - and smaller organisations in particular - to protect
their vital intellectual property. But SMEs lack the time and money
to enforce patents, and the result is that the larger companies
hold an effective monopoly on most technologies.
Most SMEs simply forgo the option of patents and rely on
copyrighting for protection. Other companies, termed by US lawyers
as "litigation enterprises", buy up patents and then sue companies
that infringe them, or license them at high rates.
Never 100% sure
Some in the industry feel that conducting a patent check when
developing new software is the only way to protect the company.
However, as software patents have such a wide scope of application,
organisations can never be 100% sure they are not violating a
patent, even after a very exhaustive search. And if a search did
identify similar technologies, there would usually be a heavy price
to pay to use that technology - if the company in question is
willing to share or sell it.
More likely, firms would find they cannot implement the product in
mind, forcing software developers back to the drawing board to
avoid the patent demons.
This is not encouraging innovation. Instead, it is taking a lot
longer to develop new technologies, slowing down intellectual
progress and ultimately creating stagnation rather than
innovation.
However, creating software in a locked room cut off from the
outside world is neither realistic nor desirable. Rather, it
requires research into and interaction with current technology and
building on previous work.
In November the European Parliament will vote on the European
Union's patents directive. Unfortunately, it appears this text
favours widespread software patenting in the vaguest of terms. Some
industry watchers have noted that this could lead to patents
warfare - similar to what the US faces now.
For the industry to continue to thrive and innovate, software
patents need to be done away with and a new model introduced that
suits large and small companies and is more suited to the unique
challenges of developing software products.
Sean Hanly is managing director at Agile software consultancy
Exoftware
