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Thoughts on Software IP and Patents
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By: Dale Vile, Managing Director, Freeform Dynamics Published: 18th October 2007 Copyright Freeform Dynamics © 2007 |
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StumbleUponA journalist contacted me the other day to ask what I thought about the story that broke earlier in the week about IP Innovation suing Red Hat and Novell over alleged patent infringements associated with Linux operating system.
My comments on this were along the following lines:
This kind of action was an inevitable development, even though it goes against the grain for many. While most would regard the existence of legal intermediaries who profit from such actions as distasteful, especially when it appears to undermine the positive efforts of the open source community, that community cannot resource the world's software development requirements. The basic right for commercial organisations to protect the fruits of their investment in research and development therefore remains important to ensure continued innovation across the industry.
That said, while I cannot comment on the specific case at hand, a general problem exists in that there is a continuum of 'originality' when it comes to inventions. Some patents are clearly 'right and proper', but issues arise in greyer areas, particularly when someone is the first to invent and patent something that others would, or indeed have, subsequently come up with independently because it is an obvious or natural way of solving a problem. The patent review process does not always capture these.
There are also undoubtedly some patents endorsed many years ago that would probably not be approved today as the world has moved on, and by modern standards, they just don't seem that special. Such patents are actually counter-productive in that they act as a constraint on innovation in a way that common sense says is unjustified.
Against this background, the cat and mouse games around patents that are being played at the moment are an unwelcome distraction. If vendors are blatantly using or encouraging patent related actions simply as a competitive spoiling tactic, or using the threat of action, whether implicit or explicit, to perpetuate fear, uncertainty and doubt, their customers should speak out against them. That is not the way a good software partner should behave.
It is such a complex area though, and taking an extreme stance either one way or the other doesn't really help. We need a balanced approach and an appropriate review process to ensure that patents reflecting genuine investment in innovation are respected, but scatter-gun or speculative registrations do not stand in the way of progress.
Reader Comments
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19th October 2007: 'James' said:
I guess the solution is patently obvious! (sorry, had to say it!!)
19th October 2007: 'plh' said:
Patents are far from being a basic right and neither are they a necessity to ensure innovation. On the contrary, it is known that patents can in principle damage innovation (whether or not "poor quality" patents are granted) and there is reason to believe, and empirical evidence to support that belief, that the effects of software patents have indeed been negative:
http://researchoninnovation.org
In his 1958 study, An Economic Review of the Patent System, Fritz Machlup warned of the folly of extending that system's reach. Invention and innovation in information technology were extremely healthy before the software patent era and the severe and worsening problems we see now are precisely because an extreme stance has been taken in recent times: that of blithely extending patentable subject matter to "everything under the sun made by man" - regardless of the economic and moral consequences.
Paul.
22nd October 2007: 'Dale Vile' (Author) said:
I think it is important to distinguish between IP protection per se and the way it is implemented. Doing away with IP protection altogether is not the answer.
22nd October 2007: 'plh' said:
Doing away with IP protection altogether certainly isn't the answer - but I thought we were discussing patents; specifically software and business method patents - in which case the problems are intrinsic and serious, and for various reasons, unlikely to be remediable by realistically achievable changes in patent system implementation. In the words of Sir Robin Jacob, "Do we need patents for computer programs? Where is the evidence for it?".
Paul.
19th October 2007: 'Anthony Kuhn' said:
Dale:
Thanks for your thoughts on software IP and innovation. There are those who would agree that there needs to be a tempering process that allows for innovation, but retains the financial incentive to create and profit. A balance needs to be struck. Your post is right on target for my audience, so I cross-posted on your piece to http://blog.innovators-network.org The Innovators Network is a non-profit dedicated to bringing technology to startups, small businesses, non-profits, venture capitalists and intellectual property experts. Please visit us and help grown our community!
Best wishes for continued success,
Anthony Kuhn
Innovators Network
22nd October 2007: 'Dale Vile' (Author) said:
Thanks Anthony - will take a look.
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