ANTI-SOFTWARE PATENT ACTIVISM INFECTS THE UK COURT OF APPEALS: It is being reported today that Sir Robin Jacob, a judge at the U.K.'s Court of Appeal who specializes in intellectual-property law, spoke about issues surrounding software patents at a seminar for the Society for Computers and Law on Thursday evening in London.
During the course of Lord Justice Jacob's presentation, he hauled-off on the U.S. patent system, and particularly the practice of patenting software. Here are some quotes:
I realize that the article only cites selected portions of Lord Jacob's comments, but this is pretty outrageous stuff. It is intellectually lazy, and his comments do nothing for progressing the ongoing discourse on patent policy (Lord Justice Jacob was reportedly "glad" that he hasn't had to consider any software patent cases in the appeal courts yet).
- "Do we need patents for computer programs? Where is the evidence for it?"
- "The United States takes the view that anything made by man, under the sun, can be patented. And they have granted patents for business methods, mainly computer business methods. But as far as I can see, it would cover a new and improved method of stacking oranges on a barrel." [Blogger Note - see US Patent 4,955,529 - "Produce Dispenser"]
- "[People have] got to look at all IP rights critically and say, 'Do we need them?'"- "It's been said that (searching for prior art) is all going to be sorted out and will be very easy in due course--I don't believe it . . . and some of the fuzzy patents that have emerged from the United States tell you that it's going to be very difficult to stop very ordinary things from being patented."
Regarding the "evidence" he demands from software patentees, the European Commission has funded a study on the legal, technical and economic effects of software patents on innovation, but the study is not due to be finished until 2007. However, there are preliminary studies that have been conducted in the US that show that software patents are important, especially to smaller companies. One study, conducted by Ronald J. Mann from the University of Texas School of law, supports this notion, and further rejects the idea of "patent thickets" being the bane of software innovation. Regardless, there is no econometric or bibliometric data in existence today that shows that software patents are impeding the advance of software.
Also, it is disturbing to me that a sitting appellate judge all-but-admits that he can't be bothered to look into the putative benefits of software patents and instead engages in some haughty analysis why patent law shouldn't accept new technologies into its domain (if one still considers software a "new" technology). His views are not tempered by any legal findings or analysis, but seem grounded in the metaphysical concept that computer programming is not "science."
Finally, it was inevitable, as it is with most anti-patent proclamations, that Lord Jacob erroneously applied concepts of obviousness (i.e., "very ordinary things") as a basis for determining patentable subject matter. It cannot be stressed strongly enough that "obviousness" is a legal concept that is completely independent of "patentable subject matter." An application that is found obvious won't issue as a patent because someone else has already disclosed the invention prior to the applicant. An application that is not deemed patentable subject matter won't issue as a patent because no one has the right to claim such an invention.
It has been the repeated practice of anti-patent commentators to simply cite examples of flaky patents and extrapolate the conclusion that patents, as a whole, should be banned. This is nonsense squared. As Nathan Myhrvold succinctly said, "the stock market has stocks of companies that are flaky and questionable, right? But does that mean we should just avoid all public security markets?"