Richard Lightman, a prominent computer programmer, set up an online petition about software patents on the, now notorious, Downing St Web site. The petition was as follows: ‘We the undersigned petition the Prime Minister to make software patents clearly unenforcible’. The deadline for signing was 20 February and 2,215 people showed their support by signing the petition. The detailed justification filed in support of the petiton was as follows:
Software patents are used by convicted monopolists to threaten customers who consider using rival software. As a result, patents stifle innovation.
Patents are supposed to increase the rate of innovation by publicising how inventions work. Reading a software patent gives no useful information for creating or improving software. All patents are writen in a sufficiently cryptic language to prevent them from being of any use. Once decoded, the patents turn out to be for something so obvious that programmers find them laughable.
It is not funny because the cost of defending against nuicance lawsuites is huge.
The UK patent office grants software patents against the letter and the spirit of the law. They do this by pretending that there is a difference between software and ‘computer implemented inventions’.
Some companies waste money on ‘defensive patents’. These have no value against pure litigation companies and do not counter threats made directly to customers.
No surprises there then. The Government response, released on 27 February, is not surprising either but it does not lack interest:
The Government remains committed to its policy that no patents should exist for inventions which make advances lying solely in the field of software. Although certain jurisdictions, such as the US, allow more liberal patenting of software-based inventions, these patents cannot be enforced in the UK.
The test used to discern between patentable and non-patentable subject matter in the UK has recently been clarified by the courts, and is applied rigorously by the Patent Office. Under this test, the true nature of the advance being claimed in a patent application must be determined, and if this advance lies solely in the field of software, or another non-technical field such as methods of doing business, the patent will not be granted. If the advance being made by an invention does lie in a technical field, it must also be non-obvious and sufficiently clearly described for the invention to be reproduced before a patent will be granted by the Patent Office.
The recently published Gowers Review of Intellectual Property, an independent review commissioned by the Government, recommended that patent rights should not be extended to cover pure software, business methods and genes. The Government will implement those recommendations for which it is responsible, and will therefore continue to exclude patents from areas where they may hinder innovation: including patents which are too broad, speculative, or obvious, or where the advance they make lies in an excluded area such as software.
Is it really true that the law has now been clarified by the courts? Presumably that is a reference to Aerotel/Macrossan – read Nick Reeve elsewhere on the site on the value of that clarification. Interesting to see too that the Government acknowledges the limits of its responsibilities in this area – it could be argued that Richard Lightman was petitioning the wrong seat of government.
