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
This was first published in November 2004