Wednesday, March 09, 2005

LET THE CLUCKING BEGIN! The press has been eagerly noting reactions from our EU friends since the EC adopted the software patent directive. And - surprise! - almost all of it is negative. And it's not your garden-variety negativity you'd get from a disgruntled advocate; it's more of a "get-out-the-tinfoil-hats-because-the-invasion-is-about-to-start" anger that has completely enveloped the more socialist elements in EU software circles:

"I do hope this is an error, and wishful thinking from the EC . . . If it is true then it is a very sad day for Europe and the World. The people responsible for this are criminals, the fact that it is white collar crime doesn't make it any better."

"With one hand they fine Microsoft £500m. With the other they give them the means to make £500bn," said Steve J, describing himself as a "soon to be poor software developer"

"Allowing software patents in Europe would basically allow the US to walk all over any European business." Chief technology officer Bill Franklin added: "OSS development is now going to be spearheaded in the third world."

"The sheer ignorance of using US patent protection and the word 'healthy' in the same sentence is repulsive," said Marcus Widerburg, "Seriously, I dont think anyone in the software industry with any insight would think [that the U.S. software industry is 'healthy']"

Horrors! But the most interesting thing I noted was a quote, highlighted by the staff at, analogizing algorithms to common tools used by skilled artisans:

Some readers explained their opposition so eloquently, it seems hard to believe the EU could ever support the directive: "Imagine a plumber not being able to use a clockwise turn with his spanner to tighten a leaky pipe due to the 'clockwise turn' being patented by a large international plumbing firm," said a systems engineer. "Or what about a carpenter not being able to hammer in a nail as 'hammering' had been patented by a large international carpentry firm. Make no mistake, when things as elementary as a progress bar can be patented, we ARE talking about this level of impact for small to medium business that are unable to afford to play the patent game. What's worse is that if this IS passed, any one piece of software may well cross over dozens of patented ideas."

Well, it's a valid concern in principle, but hardly a new sentiment that hasn't been addressed before, at least in the US courts. In Gottschalk v. Benson, Justice Dougles (hardly a cheerleader for software patents) rejected a BCD-to-binary conversion algorithm as patentable subject matter, stating that "[p]henomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work." However, “[w]hile a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.” Thus started the 30-year journey for US patent law to rationalize, and finally recognize, software patents as statutory subject matter.

Welcome to 1972, ladies and gentlemen . . .

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