Computer-implemented inventions that are patented in Europe should be required to fully disclose the patented invention, for example by including working, compilable source code, that can be verified by others. This would be one way to avoid frivolous software patents, says Mirko Boehm, a Berlin-based economist and software developer working for the OpenInvention Network (OIN).

"Patents require disclosure of the invention, but many software patents are so vague that it is unclear what is patented by them. Disclosure is the price for being awarded a temporary monopoly. Many software patents cheat by only describing the patent claims at a very high level."

Because of their vagueness, software patents often describe ideas instead of concrete inventions, contravening patent rules. Some patents contain ridiculously basic concepts, such as the one for backing-up data from the Internet. "That is how email works, and every other distributed service on the internet", says Boehm.

Patent trolls

Boehm, speaking at a round table discussion in Brussels last week, warned the European Commission's representatives that patent trolls are already active in Europa, extorting small and medium-sized enterprises. The current patent system is not creating a level playing field, says Boehm. "A start-up struggling with its funding can not afford the four figure sums needed for patent review, rendering them defenceless against patent trolls. Europe's current patent system is hampering competition."

The economist helps to maintain OIN's Linux System Definition, specifying the range of software that is covered by the organisation's "defensive patent portfolio".

Not helping

The organisation acquires patents, aiming to reduce the risk of patent litigation for its members. It licences these patents freely to everybody who pledges patent non-aggression. OIN was launched in 2005 by IBM, NEC, Philips, Red Hat, Suse (part of Novell) and Sony. Members now include Google and Tomtom.

The disclosure requirements of Europe's patent system do not bring the expected benefits, Boehm says. Innovative software developers do not consult patents to find new inventive software solutions: "The most-recent ground-breaking software development was Quicksort. It was invented in 1960. We now have plenty of patents including software that are covering ideas, but very few that are actually inventions."

Anti-free software

Patents are a 19th century solution, for the 19th century's problems, says Carlo Piana, a lawyer for the Free Software Foundation Europe, a second speaker at last week's meeting. "Patents are totally, irrevocably anti-free software. The two are incompatible."

The lawyer said that the patent system is creating a hostile environment for software developers. "The problem is that software has become patentable, and has little to do with good or bad patents, but with patents being unfit to software."

Piana points out that patents are increasingly mandated by certain standards, "making the problem several orders of magnitude larger". This is especially the case when standardization bodies have unclear policies on intellectual property rights. "This is problematic for everybody, with small and medium-sized software enterprise in the worst position."

More information:

Round table discussion, organised by OpenForum Academy

Open Invention Network