LASP

It's getting chilly....the Gowers review states the obvious

So, at the end of the last week we had the long awaited Gowers Review of Intellectual Property. As someone who is firmly against software patents you might think I was pleased with the outcome of the review in this area. Well, to a certain extent, Gowers can be praised for not going off-piste and sticking to the line that computer programs 'as such' or 'pure' software should not be patentable and for the number of statements he makes about the negative effects on innovation of "pure" software patents. All good stuff and for anyone not wanting to read through the report here are the juicy bits:

"4.114 There have been calls in the UK to introduce pure computer software patents to

ensure that innovation is properly protected and encouraged. In Europe, patents are not

granted for computer programs as such,87 but patents have been granted to computer-based

innovations provided they have a technical effect. In the USA, pure computer software

patents can be granted. The evidence on the success of pure computer software patents is

mixed. The software industry in the USA grew exponentially without pure software patents,

suggesting they are not necessary to promote innovation.88 The evidence suggests software

patents are used strategically; that is, to prevent competitors from developing in a similar

field, rather than to incentivise innovation.

4.115 In addition to the concerns that increased protection does not increase incentives,

some have commented that pure software patents do not meet the criteria for patentability.

The most profound problem with using patent law to protect software is that innovation in

the field is usually accomplished in increments too small to be viewed as inventive steps. 89

Several submissions to the Call for Evidence, for example the Professional Contractors

Group’s submission, argued that software should not be patentable in principle. Where

freelance businesses develop software, they rely on copyright to protect it. This protection is

free and automatic. The copying of as little as 1.7 per cent of a program’s code has in the past

been found to be infringement of copyright.90

4.116 Introducing pure software patents could raise the costs for small software developers

to mitigate against risks surrounding R&D, thereby inflating the capital needs of software

development. Sun Microsystems argued that without exceptions that allowed for reverse

engineering for interoperability, pure software patents could stifle competition.

4.117 Last year, the European Parliament rejected the Computer Implemented Inventions

Directive, but this issue has been raised again. The economic evidence suggests that such

patents have done little to raise incentives to innovate, and other evidence suggests that the

introduction of such patents will have a chilling effect on innovation. In the absence of such

evidence, a new right for pure software patents should not be introduced, and so the scope of

patentability should not be extended to cover computer programs as such."

(Crown Copyright, the Gowers Reveiw of Intellectual Property, December 2006)

However, all in all, in respect of software patents I find the review a great disappointment because it does little more than state the obvious. The Gowers team has swallowed the pro-software patent lobby propaganda hook, line and sinker, by failing to undertake any detailed analysis (or show any understanding) of the real issues facing the IT community in Europe, i.e., the uncertainty around 'computer assisted inventions' that was at the centre of the debate on the Software Patents Directive (otherwise known unhelpfully as the Computer Implemented Inventions Directive). The report accepts, without question, that it is right to talk of a distinction between 'pure' software, or software 'as such' and software having 'technical effects' and in doing so it effectively fails to move forwards from July 2005. There is and never has been a test of 'technical effects' in the EPC and the UK Patent Act. The concept has been used by the European Patent Office to create the illusion that certain software applications are capable of being patented, to render a thing that is neither a physical artefact or a process (and which has no experimentation cost justifying a monopoly) into something which, by adding the word 'technical', seemingly satisfies the test for patentability. However, the doctrine of 'technical effects' has been severely criticised from its very inception. Software, in whatever form, does not by itself have a technical effect (readers can review my article of January 2006 linked to on this blog for a detailed discussion on this point). The fact that Gowers also uses the language of 'computer implemented invention' again shows that the review has been gobbling up too much of the pro-software patent lobby's (and EU Commission's) penchant for trying to have us believe that an invention can subsist in nothing more than software running on a computer (a position that has been rejected by the UK Court of Appeal last month when it confirmed that, to give effect to the intention of the EPC, a computer program and the standard apparatus used to run the computer program, should both be considered as excluded subject matter). The recommendations are hollow in failing to: (i) protect the UK software industry by actually make a clear statement against the continuing attempts by minority vested interest groups to water down the purpose of the computer program exclusion by the charade of the 'technical effects' doctrine; and (ii) look at the real issues of debate, i.e, that software (of whatever type) is not suited to the patent system yet there are many inventions that are assisted by software programs ('computer assisted inventions'), where the law needs to be clarified to ensure that, the mere presence of the software, does not prevent a physical artefact or process, which is assisted by the computer program, being patentable (where all the other criteria for patentability are met).

So Santa this year has not brought me what I was wishing for..a proper debate on software patents...