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The Patent Lawyers in the EU and NZ Must Not Decide on Patent Policy Including Software Patents

Posted in Europe, Patents at 1:22 am by Dr. Roy Schestowitz

Two lawyers

Summary: Two of the primary battlegrounds defining the future of software patents are infiltrated by special interests, representing less than 1% of the population

The EPO and the EU Patent are two of the forces which strive to expand the scope of patents to software, even in Europe. Lobbying from multinationals such as Microsoft contributed to that. A few days ago we saw a law firm trying to tilt the debate while patent lawyers framed the issue as trying to “limit” software patents (which are already sort of banned). See the article “German proposal to limit software patenting”. They want to reinforce a ban, not to limit software patents [1, 2, 3]. The author somehow ties Open Source into it when he concludes with: “Reform recommendation 3 is vague. As mentioned above, open source is often attractive but may not always provide the best solution – either in terms of guaranteeing long term investment in research and technical innovation, or in terms of meeting current commercial needs. The patent system provides important incentives for research and investment, and great care is needed before creating exceptions that will bypass long-established and effective laws and change the commercial landscape.”

Research does not require patents. That’s a myth. Investment does not necessitate monopolies, either. Academia is a good example of that. Over in New Zealand there is a similar war being waged by patent lawyers against the rest of the population. This new analysis we found says:

Last month, the IT sector in New Zealand celebrated the passing of a bill that removes the patentability of software, perceived to be a major barrier to software-led innovation, from the Patents Bill.

In fact, many countries around the world either already forbid software from being patented, or are in the process of doing so. But, isn’t a patent supposed to help innovation, so why would any government forbid software from being patented in their country?

A patent gives an inventor the monopoly on the use of their idea for an extended period of time. In return, the inventor has to disclose the secret behind the invention to the public. The system is designed to induce the sharing of idea and knowledge, something which would have been kept secret if there were no such system in place.

The designers of the patent system believed that the sharing of knowledge behind inventions would lead to more invention, which would in turn lead to general benefits to society.

No, this is not the case. In the age of the Internet dissemination of ideas — especially software ideas — is very simple and it is rewarded in various ways. Throwing in the word “innovation” is pointless as it’s mostly a marketing term. Society does not benefit from monopolies but from a maximal sharing if knowledge, which speeds up what the author can call “innovation”. The author, Jay Jootar, is a management guy, not an engineer. It’s not surprising to see the debate starting like this, but like many VCs he recognises that patents mostly benefit the large multinationals (of which New Zealand has almost none that’s domestic). To quote his final words:

Big companies accumulate patents, not to use them for innovation, but to protect themselves in patent disputes by counter-suing the other parties. A case in point is Google’s acquisition of Motorola and its patents to protect itself from lawsuits by Apple and Microsoft, among others.

The software patent obviously has no benefit whatsoever for society, innovation and tech start-ups.

What about Thailand? Luckily, we are among the countries that do not allow software patents, except for special circumstances. This is one of a few things we have done right. Hopefully, no one is clueless enough to change that.

The fear here is that lawyers at various levels are hijacking the debate about software patents, striving to make those expand outwards from the United States. Developers and ordinary people who buy electronics need to intervene more.

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