A protest tomorrow in the streets of Brussels, Belgium, over a proposed European law on software patents will spill into the Internet as more than 600 Web sites are expected to modify their operations in support of the dissenters.
The online protest is being organized by the Foundation for a Free Information Infrastructure (FIFF). The group is asking Web sites of every stripe to shut down for the day in support of the protesters and to replace their home page with a protest page.
The sample page at the FIFF Web site reads in three languages: “This page is temporarily closed in protest against software patents. Web sites may soon be closed down regularly due to software patents. Software patents can get you prosecuted for publishing texts you wrote yourself.”
Will Hurt Little Guys
According to organizers of the street protest, which will start at noon Wednesday in front of the European Parliament (EP) building in Brussels, the proposed law, called a directive, will hurt small developers.
The directive “would impose U.S.-style unlimited patentability of algorithms and business methods such as Amazon One-Click shopping,” Benjamin Henrion, one of the protest organizers, said in a statement.
“Leaders of the scientific communities and software business world took the directive proposal apart and condemned it in every respect,” he added. “Yet in June the EP Legal Affairs Commission endorsed this proposal with further amendments that make it even worse.”
Scientists Rap Directive
Earlier this year, 31 scientists signed a petition submitted to the EP calling for the legislative body to “make impossible, clearly, for today and tomorrow, any patenting of the underlying ideas of software or algorithms, of information processing methods, ofrepresentation of information and data, and of the interaction between human beings and computers.”
In a FAQ on the issue, the European Union said the proposed directive is necessary to harmonize what has become a “bundle of national patents which have to be validated, maintained and litigated separately in each Member State.”
Without a directive on these kinds of patents, the EU contends, the scope of what can and cannot be patented will fall to the judicial bodies of the European Patent Office without the opportunity for “coherent political reflection” based on the big picture.
, which will have to compete in a U.S.-style system in which large companies use patents to squeeze licensing fees from smaller competitors.
That characterization of the U.S. market appears alien to some intellectual property experts. “I haven’t seen that in my experience,” Matthew Sampson, a partner with the law firm of McDonnell, Boehnen, Hulbert & Berghoff, told TechNewsWorld. “I’ve seen a number of small companies take advantage of patent protections here.”
Diverging Paths
Presently, Sampson asserted, the EU and the United States are on diverging paths with respect to the protectability of software, and particularly business methods. At this point, he said, the United States affords significantly broader patent protection to software.
“The European Patent Office has adopted rules stating that it will not even conduct a search on patents directed solely to software,” he noted.
If the proposed directive became law, he said, it would bring the EU “back into alignment with the broader protection that’s available here.”
Welcome Development
That would be a welcome prospect for some IP lawyers on the U.S. side of theAtlantic.
“I welcome the anticipated lessening of barriers to business method softwarepatents in the EU,” Kent Genin, a litigator with Brinks Hofer Gilson & Lione, an intellectual property law firm in Chicago, told TechNewsWorld. “There should be moreopportunities to protect business models and more incentive to invest insoftware development, generally.”
Don’t Need Protecting
Some software EU developers, though, want no part of any security that the proposed directive would provide them.
“We believe the directive will open the floodgates for software patents inEurope,” maintained Hkon Wium Lie, chief technology officer of Opera Software, maker of a Web browser by that name.
“This is a threat both to open-source developers — who clearly cannot afford to pay licence fees — and to companies like Opera Software,” he continued. “We don’t need the ‘protection’ that the directive wants to give us. We prefer to protect our innovations like a long-distance runner: by being faster than our competitors.”
“Also,” he added, “software patents threaten the Web as an openinfrastructure where everyone can participate, since open standards areblocked by software patents.”
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I have a degree in computer science and a degree in law. What I know as a certainty based on this background is that most of the legal conclusions presented by computer scientists when discussing U.S. patent law and practice are simply not true.
Algorithms are not patentable in the U.S. Software is not patentable in the U.S. Business methods are not patentable in the U.S.
A general-purpose computing machine having programming instructions that when executed by the general-purpose computing machine transform the general-purpose computing machine into a special-purpose computing machine is patentable in the U.S.
So, if the special-purpose computer has some program instructions in it that implement an algorithm, then the special-purpose computer is patentable, not the program instructions or the algorithms.
You can also patent computer-implemented processes; however, you are required to show the structure that implements the method. What’s the structure? The special-purpose computing machine, of course.
Consider an amplifier implemented by an analog device or by a digital signal processor (DSP). The analog amplifier accepts an input signal with an input amplitude and provides an output signal with an output amplitude greater than the input amplitude. If I come up with a novel and nonobvious way to configure some semiconductor material to create the analog amplifier, then everyone agrees that I should be allowed to seek a patent for the new amplifier. Now I have a DSP that accepts an input signal at an input amplitude and generates an output signal at an output amplitude greater than the input amplitude. If the software I use within the DSP is both novel and nonobvious, why should I not be allowed to seek a patent?
Put another way, an amplifier is a computational device that accepts a string S that is a member of language L and produces a string S’ that is also a member of L, not a very complicated computation at all. If I build devices that perform the computation with one device using electrons and one device using programming instructions, why can’t I patent each version of the device? Currently, in the U.S. you can get a patent on both. In the European Patent Office, you only get a patent on the device using electrons.
The software community is really grappling with the overall question of whether or not we should be able to claim property rights in intangibles. I for one see no difference in claiming a right in something I can touch (like my car) and something that I can’t touch (like my ideas).