Thought for the day: Prepare for the code war

The quest to harmonise software patent rules may sound good in theory, but the reality will only benefit predatory big business,...

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The quest to harmonise software patent rules may sound good in theory, but the reality will only benefit predatory big business, warns Simon Moores.




You might have thought that Europe might offer a defence against the predatory side of big and invariably American business but I don’t see a great deal of evidence that European innovation can survive and thrive under the new American Empire.

Take the rules on patenting as an example. In September, the European Parliament will vote on whether it should adopt a recommendation by its Legal Affairs and Internal Market Committee on whether the continent should harmonise its software patent rules in line with American and Japanese legislation.

And why not, you might ask. Wouldn't we all then be competing on an equal basis with a solid framework of international law to protect companies from unlawful borrowing of their code?

In theory, you might be right, but the reality may be somewhat different because the results of such legislation would shift the balance of power towards the really big global software companies and make development an expensive risk in the face of potential patent infringement lawsuits.

Seven years ago, I had a registered company trading style, which one of the world’s largest software companies subsequently decided to name a product after. Very quickly, I was told to desist, even though I had legally arrived at the name first.

My trademark solicitor sensibly advised me that unless I had significant funds at my disposal, a fight was out of the question and so I bowed to the inevitable.

In the world of software patents, the same thing is likely to happen if the EU goes ahead with this harmonisation exercise because small software companies might suddenly find themselves slammed with a patent infringement charge by one of the larger ones. It does not really matter whether such a company might have infringed a software patent or not. It would have to prove its case in court or simply pay up for a licence.

If you happen to be the managing director of such a company, it’s unlikely that you would be prepared to blow your company’s profits on legal fees, so you are more likely to sullenly pay up than risk a court case.

The other side of the coin is equally distasteful and resembles a very high-stakes game of poker. Let’s say, for the sake of example, that a small British company Widget Soft comes up with a really good piece of software that knocks the spots off a new application from one of the big software companies.

The choices for the bigger player might involve buying the smaller company and incorporating its code in a future release, or throw a charge of patent infringement in its direction, wait for it to implode under the strain and then pick up the useful pieces from the administrator.

We are already seeing the first signs of such a problem buried in the SCO versus IBM patent infringement lawsuit involving Linux. And, where open-source development is concerned, companies will be constantly looking over their shoulders in a world where most new software ideas are built upon the old.

If you can patent code in the same way that you can patent pencils then innovation, particularly within the open-source community, will shrivel and die. This will leave us with a world with two proprietary offerings, one based entirely upon a single dominant operating system and the other based upon a service model, where the so-called "open" operating system glues the result together.

I’m not sure I like the prospect of either as a stimulus for the European software industry.

What do you think?

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Setting the world to rights with the collected thoughts and opinions of leading industry analyst Dr Simon Moores of Zentelligence.

Acting globally, Zentelligence (Research) advises governments, suppliers, business and the media on the evolution, application and delivery of leading-edge technologies and specialises in the areas of eGovernment and information security.

For further information on Zentelligence and its research, presentation and analyst services visit

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