The Race to the Bottom
(Proposed article for ZDNet)
Even as the US wakes slowly up to the catastrophe that is its patent system, the EU is racing to the bottom, led by the the European Union internal market commissioner Charlie McCreevy, cheerleader for the "harmonisation" movement that wants to introduce a "Community Patent" in 2006.
Every industry has its nightmare monster.
In the IT sector, it is software and business process patents. These multi-headed hydras are nameless, unkillable beasts, protected by impenetrable armour, and they are voracious hunters. They hunt in packs, catching the unaware, stripping them of their flesh, leaving only bones and footprints and the horrible smell of ruin.
Last year, a coalition of European Parliamentarians, small and medium firms, dedicated activists, and journalists, beat back software patents, leaving the field open for businesses to innovate freely, without fear of aggression from patent firms.
And now the software patents are back, and they are hungry.
The keyword is "harmonisation". For many of us Europeans, harmonisation has been a force for good. It's the reason we can travel without visas, using the same money all across the continent. It's the reason we can do business all over the EU with minimal red tape. Except for a few extremist Eurosceptics, harmonisation has meant the removal of petty local barriers and the opening of a large and vibrant market.
But in the last years, the EU power cliques have gotten bored. They have given up trying to woo the citizen, and instead they are focussing on consolidating their power.
We saw this last year, with the fast and brutal passage of the "Data Retention Directive", a surveillance law that makes a mockery of our happy European ideals of liberty and privacy. This law shows the dark side of "harmonisation".
And in the vacuum left by the absent EU Constitution, the officials of the Council and Commission are doing everything they can to take over power from the elected parliament, in the name of "harmonisation".
Which brings us back to McCreevy and his vision of a EU in which patents are the bread and butter tools for innovation. Here is one question from a questionaire from the Commission, on the subject of patents:
"If you are responding as an SME, how do you make use of patents now and how do you expect to use them in future? What problems have you encountered using the existing patent system?"
For any small-to-medium enterprise involved in technology, the question is bizarre. We don't avoid software patents because they're expensive. We avoid them because they are horribly dangerous. This has been explained many times, by better people than me. It comes down to this: SMEs don't need cheaper patents, they need clear protection from junk patents and the lawyers that follow them.
And software and business process patents are, by their nature, junk patents. How can one describe an abstract process in words? It is not possible. Even common words shift meaning, and technical jargon is so variable that its use in contracts is a recipe for disaster.
Why do I say, "contract"? Because, fundamentally, a patent is a contract between an inventor and society. The contract is meant to say, "you, the inventor, document your invention so that others can benefit, and in return we, society grant you exclusive license on it, for a limited period".
But what the contract says nowadays is, "you, the client, are welcome to claim any idea or concept as your 'property', just so long as you encrypt your claim in sufficient linguistic armour and make it worth our while financially."
The patent offices have really gone downhill since Einstein left.
There are still a few bright lights in the general darkness. First, the idea of the European Patent Office acting as judge and executioner on EU patents - what McCreevy is pushing for - raises the hackles of senior judges (real judges, that is). Last week, Judge Jacob in the UK commented that what was needed were independent patent courts, filled with national judges. These comments from a very senior UK judge show that the push to centralise judicial power in the hands of EU bureaucrats will not happen peacefully.
Secondly, we're seeing growing realisation in the US that the patent system there has become a sick joke. It's not just software patents, but junk patents of all varieties that are flooding the market, with over 200,000 patents pending. It's impossible to say what the effect of these patents is on business, but my guess is that we are seeing a real and dramatic shift of innovation to regions of the world with less oppressive patent regimes. And these shifts are generational: it can take fifty years to build up a culture of research, but only a decade to lose it.
I believe the negative impact of software and business process patents on the US economy will become so obvious within five years that it will seriously disrupt the global patent cartel, that coalition of monopolists, specialised IP firms, IP attornies, and compliant officials, who have overseen the race to the bottom since IBM hacked the first software patent into existence in the early 1990's.
For me, there is one clear way to save the patent system before it collapses into itself, taking a large chunk of our more vulnerable hi-tech sector with it. That is: we must restate the original patent contract, and redefine current patent practice to follow.
The misleading term "intellectual property" is, I believe, at the root of the problem. This term suggests that patented inventions are property, and as such, must be forcefully protected against theft, expropriation, or any weakening. Strong property rights are accepted as the basis for a capitalist system (if you can't own your home, you are unlikely to invest in it, for example). So, by implication, strong intellectual property rights must be good for businesses.
Which is, ironically, not the case. Strong IP regimes do not create innovation, they create monopolies, and monopolies are good for only monopolists.
Patents, like copyright, are "intellectual licenses". That is, we as a society grant the author or inventor a license to the exclusive rights on an invention or work, in return for their contribution. A license has conditions. It is enforceable, it is documented, it is fair, and it can be withdrawn.
McCreevy's vision of ever-cheaper "intellectual property" is a sham. It takes a broken idea, and corrupts it even further. We don't need more patents, more fake "ownership", and more extortion and litigation. What we need is honest reform of the patent system, both in the US and the EU, and we need this before it is too late to save our hi-tech sectors.
A patent should be granted only when there is clear public interest to do so. The burden of proof must be on the inventor, who must document their invention so accurately that anyone can reimplement it. There must be a clear agreement on the value of the invention, both in lifespan and in monetary terms, since the license fees will be based on this. There must be solid space for fair use, since the true owner of all knowledge and inventions is society itself, and this ownership can never be rescinded.
The patent office must primarily defend the public interest and act strongly against those who abuse their intellectual licenses. A patent is either used fairly (easy to measure, in monetary terms), or it is abusive and the licensee should be punished. Yes, I'd like to see the EPO turn into the institution that protects the public interest against patent extortion.
The EPO claims to be doing this. But it is actually doing the exact opposite. It is the difference between an arms salesman and a police man. Both will claim that "they allow people to defend themselves", but the policeman does not leave ruin and devastation behind him.
Lastly, the conflict between patents and copyright must be resolved for once and for all. Software methods and business processes are not inventions, they are ideas, and these must be excluded from patenting because they are too vital to license on an exclusive basis. For ideas, like language, we grant license over indivdual works, through copyright.
For Europe, it's a simple choice. Either we follow the US in the race to the bottom, and when we arrive there, we'll find ourselves in the sleazy company of IP lawyers, IP trolls, and monopolists. Or, we seize our chance to change history, and we reform our patent system so that it actually promotes innovation, instead of strangling it.
I'm not naive enough to think this will happen, soon. Reform of the patent system is a huge task, requiring an honest collaboration between industry and politics, something that is rare in Europe. In the short term, we must ensure that if the Community Patent comes into existence, it must explicitly rule-out software patents.
To make this possible, small and medium-sized firms must speak up. It is SMEs, with visionary ideas and heavy personal investments, that keep the technology sector alive. And it is SMEs, without teams of lawyers and deep pockets, that are hardest hit by software patents and the litigation they bring in their trail.
If you live in Europe, you can help by contacting your member of Parliament now. The Community Patent will not go through the European Parliament - it will be decided by the Council of Ministers without any real democratic process.
Contact your MP today, and let him or her know that you want a fair patent system, not a race to the bottom. Ask your MP why, six months after the E.P. rejected software patents, they are coming back, in stealth, with no democratic process. Ask him or her to explain how a system that is being roundly criticised in the US can be so beneficial in Europe. And ask him or her how a patent system that rewards those who write the most confused, opaque, and abusive patents, can promote innovation. Ask him to protect your rights, as a voter, and make it clear that you have a choice.
It's going to be a tough battle, but we're fighting for the very survival of our hi-tech industries and all the other businesses that depend on them. It's one of those times when we need heros. Judge Jacob is a hero. You too, can be a hero.
