OPINION
Lowering the Volume in the Software Patent Debate

The debate over software patents is getting quite dramatic. For some, more than just lines of code are at stake. Rather, it is nothing less than freedom itself. As in the apocalyptic "Lord of the Rings trilogy," the armies prepare for war. The battle cry from Free Software Foundation Europe sounds: "Join the Fellowship and protect your freedom!"

The Free Software Foundation Europe is taking no prisoners. Along with other software patent opponents, it aggressively lobbied against the European Computer Implemented Inventions Directive (CIID), the current version of which arguably allows European law to be exploited to allow more software patents while validating some 30,000 software patents that have already been granted.

For software patent opponents, the recent decision by the European Council to affirm the current draft of the CIID is a setback. The CIID is expected to return to the European Parliament for a second reading and software patent opponents are already gearing up for a second round of lobbying. For many, the debate is nothing less than a call to arms.

Constructive Debate

How long will the battle continue? Can we ever reach a constructive resolution to the software patent debate? Like the issue itself, the answer is debatable.

The camp that opposes software patents includes staunch open-source advocates. The other camp includes proprietary software companies, and as one anti-software patents commentator said, "The only winners in the patent war are the firms that use them against other companies and the lawyers they employ."

Open-source advocates who want to use the law to abolish software patents miss an important point. "The Law" is not just a lifeless creature of statute. At the most abstract level, "The Law" is a social contract that is composed of policy choices, economic theories and social values determined by the community at large through the democratic process.

What Was the Question?

At last year's Sun Java Community Conference, Rob Gingell, chairman of the Java Community Process said: "If open source is the answer, then please tell me the problem."

The point he makes has merit. Instead of touting open source as the panacea, look at what the problem is and ask the right questions. That is a better guarantee that you will get the right answer.

Another way to frame the debate is to look at a relevant example from history: the Pony Express. The Pony Express was started in 1860. Teams of fast and daring horseback riders carried mail and packages across the U.S. within 10 days, which at the time was a remarkable achievement.

Unfortunately for the Pony Express riders, 18 months later Samuel Morse launched the telegraph. The telegraph was a creatively disruptive innovation, leading to even more amazing inventions such as the telephone and the Internet. The advent of the telegraph meant that the Pony Express became obsolete and all of its workers lost their jobs.

Should the telegraph have been put on hold because of its negative impact on the Pony Express? According to the economist Charles Wheelan in his insightful book Naked Economics: "There is a crucial distinction ... between using the political process to build a safety net for those harmed by creative destruction and using the political process to stop that creative destruction in the first place. Think about the telegraph and the Pony Express. It would have been one thing to help displaced Pony Express workers by retraining them as telegraph operators; it would have been another to help them by banning the telegraph."

What Good Are Patents?

Patent law is meant to encourage innovation, and innovation can sometimes be disruptive. Opponents of software patents might consider the words of Martin Fink, Hewlett-Packard's (NYSE: HPQ) vice president of Linux.

"At the end of the day, software patents are a way of life," he said. "To ignore them is a little bit naive. It's fine to object to software patents, but it's foolhardy not to try to acquire them. ... Refusing to patent one's ideas is leaving oneself exposed for absolutely no good reason. For some, [getting patents] may seem like selling out. You can comfort yourself that it's what you do with the patent that matters, not the fact that you have one."

Open-source advocates are not all opposed to patents on philosophical grounds, but because they make it more difficult for open-source software to propagate. For most open-source software licenses, nobody is able to collect individual royalties or even count the number of copies of their licensed software to determine royalties. A patent holder often demands royalties per use and an accounting of the royalty base. Thus, a patent holder can effectively stop the flow of open-source software.

This is the case even if there is independent invention by the open-source licensor. That is why the call to arms is over patents, as opposed to other intellectual property rights, such as the right of publicity or trade secret rights.

Stalemate

One camp insists on abolishing software patents. The other camp insists on maintaining the status quo. The deadlock benefits neither side because it is doubtful that software patents are going to go away in the foreseeable future. Curiously, some opponents of software patents don't seem to object to patents per se, just to software patents.

From a pragmatic angle, both camps might find it more constructive to focus the debate not on whether software patents should be abolished, but rather on how to prevent overly broad software patents from being issued and how to fit software patents into an open-source model.

At the least, open-source advocates should get moving on advocating for compulsory licensing or an independent invention exception, or anything short of patent abolishment that still meets the needs of open-source distribution. They might not get anywhere with it, but it's an easier battle than taking on all of patent law.

Calming Down

Ultimately, the software patent and open-source debate is complicated. As with any complex policy issue, there are no easy answers, but there are ways to approach the issues that are more constructive than others.

As a patent attorney who began his career writing software, I believe I am particularly qualified to see both points of view. So allow me to suggest that a good step may be to lower the drama level.

Let's drop our swords, put away the battle flags, and mellow out a little. It doesn't mean the end of Middle Earth as we know it. It just means we might actually be able to hear each other if we lower the volume and tone down the sounds of war.

---

Phil Albert, a LinuxInsider columnist, is a patent attorney and partner with the San Francisco office of the intellectual property law firm Townsend and Townsend and Crew LLP.

---