Few months ago, at the V World Congress of Computer Law held in Dominican Republic and co-organized by Alfa-Redi and Funglode, I gave a presentation on the inconvenience of software patents emphasising the political aspects of the “struggle”, especially focusing on how the big players were using their immensely powerful machine to impose software patents disregarding most research that shows that they were counterproductive. When I finished, one of the (very)distinguished members of the audience, told me that the presentation missed the point and correctly pointed out that software patents as such shouldn’t exist but not due to representing some sort of struggle between the big corporations and the small software developers or due to most research showing that they would chill innovation more than encourage it, but because from the legal point of view they were completely unsustainable: the absence of prior art was almost impossible to establish, the industrial application definition needed to be completely redefined, and most times the claims for software patents described a “thing” unrecognisable by the creator. My answer in that moment was that, when I acknowledged and agreed with the impossibility of applying patent law to software (unless the patent offices and judges practiced the most bizarre of the interpretations, which is exactly what they have been doing for some decades), those pushing to apply patent law to software know perfectly that and that is the reason for wanting the changes in the law and/or their interpretation. Thus, knowing that patent law was not and could not be designed to protect software, the purely legal argument should be used mainly in court, and outside it the non-legal issues need to be explained (having, of course, as background the legal impossibility of using patents to protect software), which I further argue here with a simple example.
Legislators have to vote on a very vast array of issues and, even if we forget the possibility of big corporations actually bribing them, it is materially impossible that they would know in depth about every topic and the need of external help becomes evident (which the original intent of lobbying in USA). The problem arises (again forgetting the possibility of bribes) with the fact that huge corporations and their alliances have far more resources than any other organization to devote to lobbying and to finance studies that support their causes. So, for every independent study that legislators and government receive there are potentially hundreds more financed directly or indirectly by those big economic groups, which means that purely technical legalities would not get the message through if, in addition to them, the political and economic tactics are not presented.
It might look like a sophistic approach, but before entering into the debate it seems necessary, with arguments, data and reasons, to show that there is a very coordinated and sustained campaign to benefit a handful of players regardless the damage or benefit that that move could inflict into the society, its innovation and its technological development. And examples abound, not only on software patents.
The Society for Computers and the Law of England (to which I also belong), an independent organization for the encouragement and development of law related IT and IT related law, was invited to give evidence to the All Parliamentary Internet Group (APIG), and one of the important conclusions, following a question on “What legal protection should DRM systems have from those who wish to circumvent them?”, was:
“This question appears to be based on a critical standpoint: i.e. that the current legal protection for DRM systems is too heavily weighed in favour of the copyright owner.
The current protection given to copyright owners (embodied in section 296Z of the Copyright Designs and Patents Act 1988) is the result of years of consultation and debate and arises from the TRIPS agreement, the WIPO Copyright Treaties and is embodied into European law. DRM systems therefore have this legal protection and we do not believe there is any merit in reopening the debate. If it is considered that this protection is too great, we should look more at commercial considerations to provide some balance."
It is interesting that, on the topic of software patents, even when many distinguished guests have expressed the contrary view, in several occasions the SCL’s members through the SCL magazine and events have mimicked the position of the Software Business Alliance and have not understood the current law on software patents as been also “the result of years of consultation and debate” and “therefore [software has not that] legal protection” and have also not understood that the current inconsistencies in the legal standing of software patents within Europe are not due to the inconsistencies in the law but in the violation of the law by the European Patent Office and others alike. So the morale is, if it benefit the big corporations the law should be understood as settled, but if not, there is no problem in using any mean and insist with reforming it, even after the European Parliament has expressly rejected such changes.
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