by Niall Douglas
(intended to be published in www.contractoruk.co.uk)
Early in 2003, Software Patents are likely to become enforced within the EU, despite that the European Patent Convention explicitly excludes computer software since 1973 and that the 2000 EPC Diplomatic Conference made it clear the EPC Contracting States did not want to change this. Unfortunately, the proposed EU Directive will effectively render this provision null and void which is deeply unfortunate, for three reasons:
For more information, please consult http://swpat.ffii.org/ which contains proofs of almost all the figures, ideas and concepts used in this pamphlet.
Currently, your company writes its software according to available manpower, technical merits and perhaps available off-the-shelf solutions. Should software patents become enforced in the EU, you will strictly speaking now need a lawyer present at every technical meeting to advise on which algorithms cost what royalty fee and your software will now be designed around what costs the lowest fees and little else.
If you're a contractor, you are usually directly liable for patent infringement in any work produced by your private limited company. A single even frivolous law suit would be enough to bankrupt you and permanently put you out of business.
If you decide to ignore legal advice and press on regardless, you may get away with it if your product never performs particularly well. But if you come out with the next big thing and become an object of concern for your competitors, they can slap you with so many software patent infringement law suits you either have to sell up to them or go bust.
Either way, expect to spend a lot of time fighting patent infringement cases with expensive lawyers. Software patents cover the concept and because they are so wide-ranging and vague, it's near impossible to determine which of the already registered 30,000 patents apply to your product. These patents cover some of the most basic algorithms in software today and while you might think they would be invalid because of prior art - well you'd be right, but you'll still need to employ a lawyer and go to court to prove you're right. Add together several frivolous law suits per year, and again you could be looking at bankruptcy.
While this move is disastrous for small companies and one man limited companies (ie; contractors), it's also a grave concern for larger companies with more resources to be awarded in patent litigation. Whatever way you look at it, European industry loses.
Despite the claims from pro-software patent organisations such as the BSA (mostly backed by US software multinationals), the EU is under no treaty obligation to enforce software patents. The EU can decide as it has always done either one way or another. Currently with massive financial backing, the lobby to overturn the 1991 ban is likely to win. Only your voice of concern can alert MEP's why they should reject any proposals to enforce software patents.
Software patents are bad for the industry, bad for business and bad for Europe. Act now and maybe we can stop them forever.
An expert view on why software patents are bad for the industry
A list of typical out-of-court settlements resulting from unwitting software patent infringement
Note that just because this campaign is being primarily fronted by supporters of Linux and other free software, it has nothing to do with free software specifically. Traditional proprietary software such as your products - your livelihood - are just as equally affected.
9th December 2002