AHEAD OF THE CURVE: Software patents set sail

The European Commission’s vote on software patents drew as many anxious observers in the US as it did in Europe. At stake was the possibility that America’s bizarre patent system would leak like an oil spill across the Atlantic. If that were to happen, Europe would soon be in the grips of a patent frenzy, just as we’re experiencing here.

The US patent system has become a mace that large companies can use against smaller ones. Just the threat of a patent infringement suit incurs onerous legal fees on the threatened company. That can be enough to break a low-budget outfit or shutter an open source project.

The European nations that avoided these conditions can no longer breathe easy; the EC voted in favor of its software patent legislation. I find no pleasure in knowing that Europe will soon be in the same mess we’re in.

At the time the EC was set to vote on the issue, I was doing my own thinking about patents. I met with executives at the SunNetwork conference about Mad Hatter, the x86 desktop Linux that Sun is rolling out. Mad Hatter is a combination of Linux, GNOME, StarOffice and the Evolution email client.

If you replace StarOffice with OpenOffice, you can pull together a nearly identical bundle from scratch. Sun contends that users aren’t willing to invest the effort to imitate Mad Hatter. Perhaps so, but in the present market, $US100 per seat is a lot to pay for a desktop Linux.

A quartet of Sun execs good-naturedly let me bat this issue around the table. Eventually I was left with one question: How can Mad Hatter make a profit when its features can be duplicated using free software? Sun answered, “We have some patentable technology in there.” They didn’t offer any specifics.

For some watching this issue closely, Sun crossed the line when it let the words “Linux” and “patent” get too close to each other. I’m concerned that Sun patents could head off similar technology that’s already part of an open design.

Companies in the commercial software business just shrug; Sun would be poorly run had it not put protected IP in Mad Hatter. Sun could rely on unique bundling and ease of installation to differentiate Mad Hatter from free Linux. But maintaining that edge would be costly. Patents are comparatively cheap and they last forever.

Companies that can afford it — IBM springs to mind — file patents for every significant idea they hatch. When IBM acquired Lotus and other properties, it picked up a slew of patents. IBM could probably find something connected to its patents in all of the software, methods, and algorithms that matter.

Fortunately, we have assets that reduce the inappropriate use of IP protection. So many companies own key patents that there is a sort of détente. No one wants to fire that first missile that pits all multi-billion dollar tech firms against each other.

There is also a team of unpaid researchers that is more dedicated and has better resources than the best paralegals at the biggest law firms: the open source community. Given enough time and bandwidth, they could dig up prior art on da Vinci’s entire portfolio. The media also plays a role. Even at times when massive staff cuts are rewarded with rising stock values, using patents as cudgels always attracts bad press.

The EC’s vote on software patents paves the way for protection of legitimate inventions. It also makes room for inappropriate punitive, retroactive, and pre-emptive legal action. European software patents aren’t yet a done deal. The European Parliament has voted in a set of modifications that considerably narrow the scope of the EC’s bill. It will take some time to work out a compromise. But considering that the European Commission and the Parliament agree on the need for software patents, developers and small companies likely to be affected should prepare. They’ll find plenty of empathy and advice on this side of the pond.

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