Effects of software patents
A patent is a legal document that excludes firms from doing something. A software patent is a legal document that stops software producers and consumers from researching, developing, producing, selling, and using software in various ways.
The justification for software patents is that they promote innovation, create new and useful forms of property, and are necessary to secure investment in new research and development in the software market.
Esoma believes that the experience of the software market without patents easily demonstrates that all these justifications are bogus. Our belief is that software patents exist for these reasons:
- The patent administration expands its power and influence by expanding the patent system.
- The patent industry makes money from expanding the patent system into new technologies.
- Software monopolists use software patents to exclude new competitors.
- Failed consumer goods firms want to license software patents as a "retirement" revenue stream.
Some specific problems with patents in the software market:
- Patents are granted after a delay of 5-6 years, which is too late.
- Patents are granted for twenty years, which is too long.
- Claimants are encouraged to make sweeping claims, which damages independent innovation.
- Patents are not examined by independent experts, but by an administration that has no interest in rejecting bad patents.
- There is no responsibility on claimants for bad patents.
- The trend to patenting in software has decreased the publication of new research.
- Patents are given an unjustified assumption of validity.
- Software is the only field where patents conflict with copyright.
- Software patents do not create a useful store of prior art.
Esoma believes all these problems can be resolved through the construction of appropriate patent models that take into account the economics and ethics of patenting and the development of new technology. Proper clarification of what can, and cannot, be patented is also vital.
Legality of software patents
The exclusion of software from Europe's patent system was written into the European Patent Convention in 1978. The European Patent Office has, in a series of judgements by its Technical Boards of Appeal, created a doctrine that removes this exclusion.
While the EPO asserts that its judgements are lawful and proper, Esoma believes the EPO's advocacy of software patents is based on self-interest, lobbying from the patent industry, and naive imitation of the US model.
The EPO is not a democratic structure - it exists outside the European Union, beyond the control of national and European parliaments. It both examines and grants patents, and runs "boards of appeal", courts that interpret the patent law.
Esoma wants Europe's patent system to come under democratic EU control, as has happened for Europe's trademark system. Both the pre-grant process (examination), and the post-grant process (opposition and litigation) must be done under a Community legal framework.
Ethics of the patent system
Esoma believes that basic ethics are a key to understanding the problems of the patent system. Specifically, wee feel that the patent system has several major ethical failures:
- The patent system favours large and wealthy firms over small and poor ones.
- The patent system favours "Casino Royale" speculation, not proper investment.
- Patents are worth more to rich firms than poor ones.
- Patent holders are granted too many rights with respect to the community.
- The patent administration is not economically neutral.
- The patent industry and lobby lacks proper regulation.