4. Devil's advocate: what if...

Let's play the devil's advocate for a change. Let's forget how important is open-source software to us, and how annoying is to have it restricted by software patents. What if software patents are necessary?

You might have read Jem Matzan's interview with the patent attorney Jack Haken. Should you have done so, here's a catch phrase you can't miss: «The TRIPS treaty properly requires that countries cannot use their patent laws to discriminate in favor of one field of technology over other technologies. Thus, the same patent protection needs to be available for a technologic device, for example an anti-skid brake actuator in an automobile, even after a competitor ports an original hardware logic implementation into firmware.»

Quite valid as argument. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is a treaty that sets down minimum standards for intellectual property (IP) regulations. As it's administered by the World Trade Organization (WTO), your country must be applying it, so face it: it is the law.

The actual requirement is stated as follows at Art. 27(1): «patents shall be available for any inventions, whether products or processes, in all fields of technology, provided they are new, involve an inventive step and are capable of industrial application.»

Would then software be a "technology" apart from all the others, and would the lack of patentability of software be a discrimination that infringes the TRIPS?

Are algorithms "inventions"? Or are they rather "non-technical", thus not in a "field of technology" and outside the scope of TRIPS?

Judging by the number of software patents issued in the United States, it seems that we could take "software is technology" for an answer.

Judging by the previously mentioned position of Downing Street, software is unlikely to be a technology, as long as it is not patentable.

The European Patent Convention (EPC) defines what inventions are not patentable in Article 52, paragraph 2: «(a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; (d) presentations of information.»

To me, it's even redundant, as "programs for computers" (i.e. software) contains both mathematical methods and "scheme, rules and methods for performing mental acts", it's just you don't do them mentally, you're using a computer for that. To the extent of this definition, the mental acts involves using your brain as a finite state automaton, hence the use of hardware is only an equivalent.

The UK Patent Office is subject to the Patents Act 1977, which incorporates EPC's Article 52 accurately.

Why is the United States interpreting the TRIPS differently? Why are you more likely to accept a software patent as an American?

Wikipedia is quoting Howard T. Markey (chief judge of the United States Court of Customs and Patent Appeals and later of the Court of Appeals for the Federal Circuit) for having listed the four primary incentives embodied in the patent system: (1) the incentive to invent in the first place, (2) the incentive to disclose the invention once made, (3) the incentive to invest the sums necessary to experiment, to produce, and finally get the invention on the market, (4) the incentive to design around and improve upon earlier patents.

Let's prove that software patents are actually deterring the innovation, instead of the intended stimulation of them!

Following the rationale as for the technology patents, open source software should be patented, otherwise what is the incentive to (2) "disclose the invention once made", and to (3) "invest the sums necessary to produce, and get the invention on the market"?

Decades of unpatented open source software are the best proof that the patent incentive in not necessary for software.

Decades of closed-source software are also proving that for some companies, the patent incentive is not enough.

Software is really different.

Given the exponential increase of the patents granted every year, the current patent system might be a hindrance for industrial inventions altogether. Instead of providing the incentive to invest in R&D, the huge number of valid patents increases the costs significantly. Before trying to design and manufacture a simple item such as a toothpaste recipient, you must pay attention to the registered patents and patent applications under examination: you might need dozens of engineers and patent attorney just for that!

Simply put: you might be able to design a simple item like a recipient in 10 minutes, you might be ready for production the next day. All you want is to pack some toothpaste and to sell it, you're not going to patent anything. We're not anymore in the Stone Age, creations that would qualify for inventions could even be done by kids!

But no, you have to pay tribute to the patent system. As the USPTO grants patents just about everything, the cost for developing the simplest items gets higher and higher: patent attorneys are expensive.

Two thousand years ago, Tacitus wrote: «The more corrupt the state, the more numerous the laws.» Should he have lived today, I bet he would say: «The more corrupt the Establishment, the more numerous the patents.»

Patent systems that were designed in the pre-IT era are definitely obsolete. We can see they're unpractical even for the industry, what to say then about software patents? Is there anyone who can examine the millions of lines of code in a project and to identify the applicable patents?

«Consistency is contrary to nature, contrary to life. The only completely consistent people are the dead.» — Aldous Huxley, in Do What You Will (1929).

The consistency of the the U.S. patent system might lead to the death of open source. Reforming it is only for the best. After all, we're talking about a country "by the People, for the People". Or is it a "corrupt state"?

I wonder whether someone has patented the idea of using a plastic washbowl to cover your head when it rains and you don't have an umbrella. I guess I have to pay a patent attorney.