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Software Patent Legalisation And Its Effects On Research And Development

Patents: an interesting FUD-busting point from the FSFE-IE mailing list today. Malcolm Tyrrell wrote:

Why does the following point keep coming up? Do I misunderstand the issue, or is this just plain nonsense: (quoting this ENN article)

‘Indeed, the big businesses that backed the directive — such as Philips, Nokia, Alcatel and Microsoft (…) also say, in somewhat ominous terms, that without patent protection, big companies will be less inclined to spend cash on European R&D projects, because the governments of Europe cannot offer any guarantees that commercially useful technology will be protected. In the US, those much-needed safeguards are in place, patent supporters note.’

I presume that these big companies will obtain patents in all territories where patents are available, regardless of where the R&D is performed. Unless they are threatening this merely as revenge (and I would think that there responsibility to their own shareholders precludes this), there would be no more or less reason to do R&D in Europe whether software is patentable there or not. Am I wrong?

He’s right; in my experience, software patents are applied for world-wide, in as many regions as possible (and as funds and time permit) — and there’s very little barrier for an inventor in one country to obtain patents in other countries (apart from money to pay for all those billable hours).

However, Fergal Daly had a more interesting additional point:

‘As far as I can see you’re right and in fact this is a plus for Europe, as labs in Europe would be free to use other people’s patents during their research, whereas in other regions they would have to license them before they could implement them, even for private use.’

He’s right, too, as far as I can see. This would be quite a big win for European R&D, since it would also mean they could develop an algorithm similar to a patented algorithm, as long as the patented technique was only implemented in software inside their European labs. This would be illegal to do anywhere else in the world where software patents were legal, hence is a competitive advantage over their international competitors.

In addition, it would mean that in the scenario where a product is produced using a patented algorithm, but the algorithm doesn’t appear in the final product, that would allow them to perform production in Europe without paying the license fees that would be payable elsewhere.

In summary — the ‘patents needed for R&D’ line is FUD, and the reality is in fact the opposite!