Software patents: Patently obvious or preposterous?

The software patents issue lies at the intersection of the general intellectual property debate and the protection of corporate technology revenues. The resulting war of words may soon come to SA.

Patenting in general has been controversial in recent years, with activists branding genetic patents by biotechnology firms as "patents on life" and warning of "biopiracy", while patents on AIDS medication pushed SA to the brink of a trade dispute with the US.

There have been patents and challenges to patents that range from the intentionally ludicrous to the accidentally insane: a cross between a mouse and a human, and a claim to own the rights to hyperlink "technology" are some of the more entertaining examples.

Yet it is a deadly serious business with a great deal of money riding on it.

Although it was at the centre of the pharmaceutical patent question, SA has been isolated from the software protection schism to date. This seems set to change, eventually if not soon, with pressure mounting to adopt the very different American approach. And if the American experience is anything to go by, there will be blood on the policy floor before the debate is over.

SA`s 1978 patent law excludes computer programs from being granted patent protection. This does not mean SA does not have patents on software, it only means they are not valid.

The South African patents office does not examine the patent applications it receives and will give protection to anything vaguely passing muster. This, as one patent attorney puts it, means you can apply to patent a wheelbarrow and have a good chance of success. However, should you try to collect royalties from wheelbarrow manufacturers, you will soon face a legal challenge and have your patent declared invalid.

SA is not alone in avoiding scrutiny of patents because doing so can become a costly business. The European Patent Office sports a budget of one billion euros for this year and has 6 000 employees.

Although it is not known how many invalid software patents currently exist in SA, many lawyers will admit to having filed at least one, knowing it to be wide open to challenge, because a client insisted.

"Practitioners are bending the rules to try and help clients but if these patents are challenged they will be smashed," says Ian Freimond, a trademark and occasional patent practitioner. Otherwise, he says, attorneys have "the unenviable task of advising clients they can`t help them, and that is especially bad if someone spent a lot of time thinking up a really clever idea".

Patent attorneys generally condemn the need for dubious filings. They are supported by a broad range of copyright, trademark and technology lawyers in calling for a change to the law.

Software should be patentable, they say, because it was arbitrarily excluded.

"This situation comes from a time when people were still uncomfortable with software and equated it to a literary work," says Spoor and Fisher patent attorney Chris de Villiers.

Tim Burrell, a patent attorney and convener of the Patent Law Committee of the SA Institute of Intellectual Property Law, says the body has called for changes to local patent law to include computer programs several times before and will do so again.

"We will move when we think it is appropriate, although we are not quite there yet."

Burrell says simply protecting software through copyright is not sufficient. Copyright extends longer (50 years after the death of the author as opposed to a maximum of 20 years from filing for patents) but the protection it offers is not nearly broad enough, in his opinion.

"Take Shakespeare," he says. "You can take all the ideas from Macbeth and rewrite it and publish it. You may not do as good a job as Shakespeare did, but you can do it. Copyright gives no protection to the underlying idea; it protects against infringement of the external appearance."

It is not the actual code commercial software developers want protected, it is the method they use or the nature of the application they have written. Software patents are often linked to the equally controversial patenting of business methods for this very reason.

In the US, both can be patented. In Europe, from which SA takes its cue, they are not. Burrell and many others believe it inevitable that the American viewpoint will prevail as the world moves towards harmonised standards and SA will follow Europe in adopting it.

Those opposed to software patents warn that such an outcome could end all hope for a strong indigenous software industry for SA.

Those who argue against allowing patents on software do so for reasons ranging from pure philosophy to everyday technical reality.

Some speak from experience.

"Giving government the right to grant a monopoly on software is akin to granting a monopoly on the plot of a novel, or on the idea of reality TV," says American activist John Gilmore, a co-founder of the Electronic Frontier Foundation with a long involvement in the open source community. He contends that America`s software patents "snuck through the back door" and should never have been. "Support for it comes from a small number of large organisations that have established large amounts of money into establishing software patents to inhibit competition."

Practitioners are bending the rules to try and help clients but if these patents are challenged they will be smashed.

Ian Freimond, trademark and patent practitioner,

Bar the philosophical argument against any form of patenting - shared by many in the open source world - Gilmore also argues the practical difficulties protection raises for other developers.

"I would say any major piece of software, if you look at it, is violating between dozens and hundreds of patents. These are not stolen ideas but things already in circulation and obvious to any programmer."

One cause is what is sometimes described as "junk patents", filings for patents that may or may not be valid and useful but also may be worth money at some point in the future.

"It turns the whole process of creating software into a lottery, a lottery that is won by the people who waste the most time filling in government forms instead of writing software and taking it to market," says Gilmore.

Edwin Blake, a professor of Computer Science at the University of Cape Town involved in government policy issue, agrees. He calls software patents a perversion and considers them a weapon that can be used against local software developers.

When the software industries of the developing world become large enough to be a threat to developing countries, then we will see the teeth in these patents come out.

Edwin Blake, Computer Science professor, University of Cape Town

"Big software companies in developed countries tend to own a lot of these so-called junk patents. They know other people won`t sue them because they can sue right back. But a new entrant doesn`t have that and will be trying to enter a market where many ideas have been patented. If someone wanted to shut down the industry in a country like SA all they`d have to do is enforce the junk patents."

Software patents, he says, are not used to the benefit of society and to promote competition but as a defensive, protectionist measure.

Software is a labour-intensive industry better suited to cheap-labour countries like SA, he contends, and when the balance of power starts to shift, the fearsome clout of patents will be turned against the developing world.

"When the software industries of the developing world become large enough to be a threat to developing countries, then we will see the teeth in these patents come out."

Some also say there is an inherent imbalance in the benefit of patents to large and small companies. Supporters argue that patents can benefit small developers; those without the funds to put a fully-fledged product to market can extract royalties from competitors with nothing more than a good idea and a patent. But those who watch patents in general say this does not hold true in practice. Large competitors often besiege small companies that hold valuable patents, says Ulrich Scmoch of the Fraunhofer Institute for System and Innovation Research in Germany. The small players will regularly abandon patents when faced with costly litigation, leaving the larger with all the power.

Even if not intentionally used as a weapon, software patents would strangle professionals and hobbyists alike in red tape, worries Derek Keats, head of information services for the University of the Western Cape and a part-time coder.

"Does it mean that someone sitting down to write a piece of code will have to go through every patent to see if somebody has done it before?" he asks. "That is insane, it is utterly ludicrous."

Does it mean that someone sitting down to write a piece of code will have to go through every patent to see if somebody has done it before? That is insane.

Derek Keats, head of information services, University of Western Cape

Although admitting to be in two minds on the issue ("If I had a good idea that could make money, I`d like the ability to choose to patent it or not"), Keats has a problem with granting a monopoly on things he believes anyone could do.

"Software algorithms are not inherently difficult and shouldn`t be patentable because they are generally obvious," he contends.

Yet the lawyers who believe that the "plot" of a piece of software should be eligible for protection say the difficulty level has nothing to do with it.

"The test for non-obviousness is not that the inventor has to be a rocket scientist to pull it off," says attorney Chris de Villiers. "Given the state of the art, it shouldn`t be obvious for a person of average skill in the field. This may lead to a situation where people patent stuff considered obvious by experts in the field."

This is also the case with many other fields in which patents are being granted, the attorneys say, and part of their argument that the exclusion of software is completely arbitrary and archaic.

"If you apply the normal tests of novelty, inventiveness and utility to software, it would work as well as anywhere else," says De Villiers.

Gilmore, Blake and Keats agree that a software patent is protection of an idea, not a tangible article. They believe this is why the lawyers don`t understand their arguments.

"Whatever they say, patenting software is not patenting a thing, it is patenting an idea," says Blake. "I would hesitate to call people ignorant but there certainly is a lot of confusion about that."

It is not only those opposed to software patents that believe developing countries should avoid adopting a foreign patent system.

There is a general move worldwide towards a patent protection of sorts for computer programs and we must conform as soon as we can.

Tim Burrell, convener, Patent Law Committee of the SA Institute of Intellectual Property Law

The Commission on Intellectual Property Rights, a body funded by the UK government, recently disbanded after releasing its final report on "how intellectual property rights might work better for poor people and developing countries".

"For the vast majority of developing countries, especially those with low incomes which rely principally on imported goods and technology, the best system might be one which applies strict standards of patentability and results in fewer patents meeting the criteria for patentability," the commission said in its final report. "This may be preferable to a more extensive system of protection, of benefit principally to foreign patent holders."

Charles Clift, who headed up the secretariat of the commission, says adopting American or European patent rules without adapting them will increase the costs to developing countries to protect, mostly, the technologies of developed countries.

At the same time, he also believes it will become increasingly difficult for poorer countries to adapt patent rules with mounting pressure to stick to guidelines laid down by economic powerhouses.

It is not only a matter of protecting national interests ahead of those espoused by global trade bodies, or even of preventing further outflows of hard currency. Patent experts say countries must also consider the broad long-term consequences of their decisions.

"By selecting specific intellectual property rights, we are determining the path of the evolution of our society," says Michael Lehmann of the Max Plank Institute for Foreign and International Patent, Copyright and Competition Law in Germany.

On the other side stand the patent lawyers who have clients with investments in software they want protected by something more enforceable than copyright law.

"We need proper protection for these programs," says Burrell. "There is a general move worldwide towards a patent protection of sorts for computer programs and we must conform as soon as we can."

"We need to clarify what the boundaries are and set down exactly what subject matter is patentable," says De Villiers. "Uncertainty may seem good for lawyers because it leads to litigation but right now we have this grey area and people don`t know if their patents are valid or not."

The most potent argument is that refusing to conform could prevent investment by foreign companies that perceive SA as a dangerous destination for their intellectual property. The attorneys also argue that they are looking to streamline the patent system.

If South African lawmakers face an unavoidable decision on the matter, as many believe they soon will, it will be the latter argument that they hear. Even opponents of software patents say there is no cohesion among them and the anti side is very unlikely to field an effective lobbying effort. What individual voices there may be, will face a fairly united front of foreign precedent, foreign corporations and local companies with a vested interest in selling foreign software here. It is not difficult to imagine who will have the politicians` attention.

Proponents may see no difference between software and other areas where patents are being granted. Their opposition does.

Where a pharmaceutical company like Bayer AG claims to spend 800 million euros and 12 years to develop an average drug, and then gets 1% of initial candidates onto the market, software development cycles are much cheaper and shorter.

If the anti-patent lobby does lose the war on software patents, it is likely to shift to the battle of duration. Twenty years represents four or five generations of software, they say, or as Blake puts it: "It is like patenting a machine for 150 years."

In general though, they would prefer not to compromise.

"If I could advise South African policy-makers, I would warn them that the extension of patents into software is unnecessary and harmful to the software industry, and that it also violates freedom of expression," says Gilmore. "I`d tell them to resist pressure from large organisations to pass something that will primarily be of benefit to those large organisations and to nobody else."