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No Software Patenting in Europe

No ePatents!

Software patents can get you prosecuted for publishing texts you wrote yourself! Websites may soon be closed down regularly due to software patents. Software patents will cause free software to be no longer available. Small or medium-sized software companies will no longer be able to do their work. Research into computer science will become impossible to do.

If Haydn had patented "a symphony, characterised by that sound is produced [in extended sonata form]", Mozart would have been in trouble.

Software patenting simply means that someone can patent an algorithm, or even worse, the idea for an algorithm, or, still worse, simply any idea. That idea can be something very basic. For instance, someone could attempt to patent "a sequence of two statements of which the first is a condition of which the evaluation result determines whether or not the second statement is executed." Or, in translation, someone can attempt to patent the if-clause. If that someone would succeed in that, nobody would be allowed to use if-clauses anymore (or any other formulation of a conditional statement) unless they would pay this person a substantial amount of money for each use.

Maybe patenting the if-clause sounds ridiculous, but it really isn't that far-fetched; already someone has patented the 3D-look of desktop controls, which is found in all Windows software. There is no limit to the number of constructs that can be patented. In the United States where software patenting is allowed, already thousands of algorithms are patented, some complex but many very, very simple. So simple, that anyone would conjure them up when they are faced with a particular problem. You probably wouldn't think twice about using them.

However, with software patenting installed, you would find that when you were trying to sell your software, as soon as you started to be a bit successful, some big company would budge in and accuse you of abusing their patents. You might act surprised, for you wrote all that software yourself. You didn't copy anything. But that's not the point. You used an idea that was patented, and as such you are guilty. Your software will no longer be yours and you will probably face charges in court.

So you might attempt to write your software without abusing any patents. But how are you going to do that? With thousands and thousands of patents in place, there is no way you would be able to check them all. Besides, some of the patented ideas are so basic that you would be unable to write your software without using them.

But cannot a small software writer get rich by patenting ideas? No, that won't happen. To get a patent awarded, you have to apply for it. Lawyers have to find out if your patent doesn't abuse someone else's patents. Administrators have to be paid to process your request. All in all this process costs hundreds of thousands of euros with a good chance your patent is not awarded. And even if it is, do you really think you would ever get your money back, let alone profit from it?

If you wonder how the big companies get around having patent problems, the anwer is simple. Their patent applications are done by the teams of laywers they have hired on a permanent basis. Each of the big ones holds a large number of patents. They enter into a contractual agreement with each other that says they can use each other's patents without restriction (so-called "cross-licensing"). Therefore, they never have to check anything and can write whatever software they want. The patents are only held to give the newcomers in the software market no chance. It's no wonder that these companies invest lots of money into lobbying for software patenting: it will give them a far better grip on the market than producing good software would ever do.

But is there no protection for software writers then? Of course there is, and there has been for decades. Software falls currently under the copyright laws. If I produce software, I hold copyrights and you cannot run away with it, not with the whole and not with any of its parts. To protect the rights of the software producers to their own work, nothing else is needed.

From a scientific point of view, software patenting will stiffle innovation. Nobody will dare to publish their new ideas anymore, for fear someone else might patent them or that someone else has already patented them. Scientific progress is stimulated by the free exchange of ideas, which software patenting will call to a halt.

The European Commission is now considering to install software patenting laws. As both a software developer and a computer scientist, I am very afraid for what software patenting will do to my profession. I can only hope that the powers-that-be will use their brains and will throw this issue out for once and for all.

You can find more information on software patenting, its dangers, and how you can make a contribution at swpat.ffii.org and Vrijschrift. I give a few examples of ridiculous patents here.