Pro Software Patent Dialectics from Bloor Research
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Analyst Bob McDowall of Bloor Research has published an essay in favour of software patenting using a dialectical writing style. He does not actually provide any evidence for the beneficiality of software patents, but rather dismisses arguments against the Council's proposal by reversing the burden of proof in favor of the "established practise" of the European Patent Office. He further narrows down the debate to "open source vs patents" and claims that open source software is not adversely affected, since it is backed by big companies who are successfully using software patents. To address widespread discontent, he proposes some procedural reforms. FFII takes this text as another opportunity to refute a standard set of popular errors, which in this case are advanced in the name of science.
The Article
Analysis and Rebuttal
The dialectical writing style makes it difficult to reject the reasoning as the flaws are inherent part of the reasoning style. Arguments are raised and mentioned but the author sets certain spin that leads to misinterpretation. Wikipedia explains: Broadly speaking, a dialectic is an exchange of propositions (theses) and counter-propositions (antitheses) resulting in a disagreement.
The title "Shoring up rights to technology inventions" suggests that software were a "field of technology" as this is the very content of the article. Field of Technology is a term also used within the directive. Bob McDowall later advocates in favour of software patenting using the argument that patents are available for classical inventions in fields of technology. However, it is impossible to draw a conclusion from that for other field, esp. when they are no "field of technology" in the sense of patent law.
The author sums up opponents of software patenting as the "open source movement", similar to earlier imaginative advocacy group like the FSA. This rhetoric pattern enables him to set spin on what this advocacy movement stands for, and reject the opinions, thus undermining the position of real advocacy groups which share a far more sophisticated view.
- "The Open Source movement asserts that the EU Directive would stifle invention and developments. This is only an assertion or, put more gently, a prediction, as there are no historical facts to support the assertion. In turn, it is argued, it would lead to patenting of all inventions such as discoveries, mathematical formulae, rules, methods and business processes."
The author here reverses the burden of proof of the patent system which lies upon those who want to apply the instrument to the field of software. Asserts that software patenting stifles innovation (!= invention) in the software industry only further weaken the case for software patenting. There are numerous scientific studies and negative experiences from the United States. He calls it a "prediction, as there are no historical facts to support the assertion.". Generally patent law has two different effects, a slower diffusion of innovation and an alleged incentive effect for stimulating innovation. For the latter effect empirical evidence is needed that it really takes place. If it does not, the first effect will predominate.
- He depicts opponents of software patenting as opponents of the EU Directive. But in fact advocates of software patenting such as EICTA rejected the Parliament's 1st reading directive, while many national Parliaments, FFII etc. reject the recent Council changes to the directive.
"discoveries, mathematical formulae, rules, methods and business processes" are no inventions according to EPC 52(2). Players such as FFII only insisted that weakening limitations of patent law leads to a slippery slope of patent law extention. When one wall breaks the flood the patent system out of control will grab for the next area by legalistic arguments. There is no huge step from software patente to patenting of computer-implemented business methods and then business methods in general.
"In turn, it is argued," Who argues it? The advocacy groups described by MacDowell as the "Open Source movement"?
- "It is stated, correctly, that patenting is a costly and prolonged process. Patenting is beyond the financial capacity of individuals and small companies; it benefits large corporations, its patent agents and the legal profession. However, patenting is the conventional and accepted form of protection for most forms of technology invention:"
- Patent law is designed for those technical fields, there is no need for application of the patent system to the non-technical field of software as software is already similarly protected by copyright. The scope of patent law has to be set by an economic rationale.
There is no evidence that a market rule which allows software patenting benefits large corporations. All that can be supported is a competitive disadvantage for SME and the erection of an artificial market entrance barrier which will drive costs up.
- Yes, patent law benefits special patent agents and some legal professionals. These are the economic interests in favour of patenting.
- "Perhaps, if the patenting process could be simplified through legal reform, streamlining the processes and reductions in registration costs, the Open Source movement may be persuaded to encourage inventors and innovators of all shapes and sizes."
- The patent system is an incentive system that does not suit the software market needs and offers protection for the wrong object. There is no need to apply an inappropriate tool.
