Charles Arthur On Technology

What have software patents got to do with fishing? Not a lot, you might think, and you'd be right. Which makes it all the more peculiar that, on 24 January, the European Union software patent directive popped up on the agenda of the EU's Council of Agriculture and Fishery meeting as an "A" item - one to be adopted without a vote.

What have software patents got to do with fishing? Not a lot, you might think, and you'd be right. Which makes it all the more peculiar that, on 24 January, the European Union software patent directive popped up on the agenda of the EU's Council of Agriculture and Fishery meeting as an "A" item - one to be adopted without a vote.

The combination of cod, turbot and the ticklish intellectual question of whether a combination of computer code - essentially, words - should be subject to patent law (instead of just copyright law) is a bizarre one at best. But it indicates just how hard the big foreign companies that want software patents introduced in Europe - against the determined opposition of many European developers and companies - are prepared to push their agenda.

So how did software get on that agenda? The smoking gun points towards Microsoft. A recent article printed in a Danish newspaper reveals that, when Bill Gates swung by on a visit to Europe last November, he met Denmark's prime minister, Anders Fogh Rasmussen, the economics and business minister Bendt Bendtsen, and the science minister Helge Sander, and said that if Denmark didn't put its weight behind the patenting of software, well, he was sorry, but Microsoft would have to close down Navision - the country's biggest software company, which Microsoft acquired in July 2002. This would entail a loss of 800 jobs. A couple of months later, the item pushing software patents as something for the EU to sign off without a murmur appeared on the agenda of a fisheries meeting.

The US may have had software patenting for years, but it is still one of the worst ideas that the industry has come up with in its comparatively short life, especially because it already has a branch of the law - copyright - to cover what it does. The problem for the big software companies is that copyright doesn't cover ideas. If you want to write a novel about a young boy who discovers that he's a wizard and goes to a school for wizards, well, nobody can stop you; indeed, quite a few would-be authors have tried this in recent years. As long as you're careful not to steal characters or situations from the rather better-known series by JK Rowling, you can write what you want. A software program is rather like the JK Rowling books: it embodies an idea. But copyright isn't enough for big business, which sees every market as a monopoly waiting to happen.

Thus the US Patent Office was pressed to allow software to be patentable. Patents have a long and venerable history, dating back to 15th-century Venice (see http://en.wikipedia.org/ wiki/Patent). But the key element about them, as presently defined, is that they should embody a process, and contain what is known as an "inventive step" - something that is not obvious even to an expert in the field. Once you've been granted a patent, then you can beat anybody over the head with it if they try to copy that process using the same "inventive step". James Dyson, of vacuum cleaner fame, has successfully sued many rivals who have tried to copy his "bagless" system, for example. The best patent lawyers will write up the invention in a manner that prevents any rival doing anything like it.

The trouble with applying this idea to software, especially commercial software, is threefold. First, consider a program like Microsoft Word. To you and me, it's a black box; we can't look inside and find out how it does the things it does. (And the Help Center doesn't either.) For a programmer embarking on the development of a new word processing program, the presence of software patents would be a disincentive to start, because you'd have to wonder all the time whether you might be infringing on Microsoft's intellectual property. You'd spend more time poring over patents than writing code.

The second problem is that software patents are used for threats - and as bargaining chips. Companies know that they can threaten lawsuits that will tie up smaller rivals in expensive actions and slow down development of promising products. Thus legitimate competition is stifled.

But the most important thing about software patents, particularly for Europe, is that they threaten the "open source software" movement from which European countries stand to benefit so much. Open-source products treat software as the construction industry treats its tools - as something to get work done and products built, not an end in itself. So a web server such as Apache is like a brick or a slate tile: a known quantity with proven qualities as the building block of a larger system. Microsoft detests the open source industry, because it threatens its revenue base; how do you compete when your rival is free? If your bricks are the same as another person's bricks, and the houses you produce both provide the same amenities, why wouldn't people go with the one that's cheaper?

Microsoft can't go after open source on copyright grounds; remember, there's no copyright in an idea. As it can examine the source, Microsoft knows there's no copying of its actual code. But running it produces the same result - a web server, an e-mail program, a web browser. But by claiming, or threatening, that open-source products infringe software patents because they perform the same process, companies that rely on "black box" software have the advantage: they can tie up the progress of rival software endlessly, and certainly frighten off people who might want to use open-source products. (Companies get very tetchy about the possibility of being sued over software.)

That's why it's disheartening to discover that the European Parliament seems poised to let the software patents slip through on to the statute book. The idea that the European Commission has slyly pushed through a measure that nobody in the field wants, and which many have actively campaigned against, means that thousands of people across Europe are suddenly not favourably disposed towards the EC.

There may just be enough time to lobby your MEP. But you have to act. Read www.nosoftwarepatents.com/en/m/help/contact.html and then find your local MEP via www.europarl.org.uk/uk_meps/Members Princip.htm. It might be worth your while. Even if it makes no difference to the price of fish.

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