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Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).

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The Guardian: Yes, but of What?

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I wrote last week about a curious article in the Guardian calling for “caution” on open source. And now we have another odd piece:

The sad truth is that while the UK has the creativity and technological know-how to produce the next Google, the relatively smooth road to patent protection in the US isn't mirrored here - and that's a stumbling block that will hinder the growth of the UK software developer.

But that connection between Google and the availability of patents in the US is simply wrong. Of all the major software companies, Google has eschewed taking out software patents the most. That's because it knows that the US patent system is broken, and wants to see it reformed:

Of the 20 patent lawsuits filed against Google since late 2007, all but two have been filed by plaintiffs who don’t make or sell any real product or service — in other words, by non-practicing entities or “patent trolls.” Most of these cases seem to feature the same small set of contingent fee plaintiff's lawyers asserting patent claims against the same small set of companies. We've also noticed a more disturbing trend: in many of these cases, the patents being asserted against us are owned by — and in a surprising number of cases, are even “invented” by — patent lawyers themselves.

Unfortunately, the temptations and opportunities for abuse have gotten too high. Lawyers and plaintiffs have seen the potentially huge payoffs available in patent litigation. Before 1990, there had been just one patent damage award of over $100 million. Since 1990, there have been at least 15, with at least five topping $500 million.

That's why I'm excited that patent reform legislation is slated to be reintroduced today by Senators Patrick Leahy and Orrin Hatch and Representatives John Conyers and Lamar Smith. Once a driver of creativity, our patent system now poses a hurdle for innovation. All too often, Google and other companies face mounting legal costs to defend against questionable patent claims from speculators gaming the system to reap windfall profits. And those lawsuits make it more difficult and costly to introduce the next revolutionary product.

In fact, the situation has got even worse recently, forcing Google to take literally extraordinary - because no ordinary - action:

The patent system should reward those who create the most useful innovations for society, not those who stake bogus claims or file dubious lawsuits. It's for these reasons that Google has long argued in favor of real patent reform, which we believe will benefit users and the U.S. economy as a whole.

But as things stand today, one of a company’s best defenses against this kind of litigation is (ironically) to have a formidable patent portfolio, as this helps maintain your freedom to develop new products and services. Google is a relatively young company, and although we have a growing number of patents, many of our competitors have larger portfolios given their longer histories.

So after a lot of thought, we’ve decided to bid for Nortel’s patent portfolio in the company’s bankruptcy auction.

So far from being a shining example of the US patent system working, Google is one its foremost victims. Emulating US software patent law here would ensure that British companies were subject to exactly the same threats and shake-downs by patent trolls as Google - with the huge difference that Google has billions in the bank to fight against such demands, or to buy patent portfolios, whereas British startups would be completely unable to do so. As a result, they would inevitably be forced to pay up or shut down.

The article's other arguments are just as erroneous:

the first question a potential investor will ask is "how will you stop competitors from stealing the idea", discovering he is likely to face great difficulty getting patent protection on his own doorstep - because the UK patent system isn't built to apply comfortably to his app - is likely to put him off entirely.

But ideas aren't patentable, inventions are. That's precisely why software, which is purely ideas in the form of mathematics, isn't patentable, despite what the Guardian article would have you believe. But don't take my word for it, here's the European Patent Convention on the subject:

(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

a) discoveries, scientific theories and mathematical methods;
b) aesthetic creations;
c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

There you have it: “programs for computers” are not patentable, although the curious beast known as the “computer-implemented invention” is, which provides a means for clever lawyers to push through some patents that might otherwise have been refused, but it's a very particular class of chimerical inventions.

So if “ideas” aren't patentable, how can a programmer protect his or her code? The answer is simple: through copyright, which applies here as to any creation. It's not possible for competitors to steal the implementation of the idea, while the mathematical ideas that lie behind it are - quite rightly - freely available for others to implement in a different fashion. It then comes down to a question of competition: which implementation of that idea is better. That's exactly how markets and capitalism are supposed to work, and means that small startups can compete on a level playing-field against big established software companies if their products are better.

But that's not the case when software patents are available. In this situation, the player with the deeper pockets - and the most lawyers - wins, because they can patent even the most trivial inventions (as is happening in the US - Amazon's infamous “one-click” patent, for example) and use them to threaten smaller players, who are unable to code around them. Because they lack resources to challenge such patents through long and costly court proceedings, younger companies inevitably have to knuckle under.

Again, don't take my word for this, here's someone else with the same view:

If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today.

That's what Bill Gates said in 1991. He changed his mind, of course, when he realised that Microsoft could use its huge wealth to acquire vast numbers of software patents and deploy them as a weapon to crush or tax competitors. Granting software patents in the UK would simply allow that strategy to be applied here. It would be insanity to hand over such a huge advantage to the well-funded, established US software houses in this way.

That's why the Hargreaves report was quite correct that the status quo must be preserved: to do anything else would probably spell the end of the UK software industry as we know it.

If the errors of the article are easy enough to rebut, there remains one more troubling issue: why on earth is the Guardian running it? At least the attack on open source that it published last week was flagged up in the headline as a comment piece - that's fair enough. But the current post in the Guardian Technology Blog has no such heading. The author's background is given at the foot of the piece, but a naïve reader would still assume that his views are shared by the Guardian. Are they? Does the Guardian really believe that the UK should emulate the US and allow software patents? If so, what on earth is it the guardian of, these days - intellectual monopolies?

Follow me @glynmoody on Twitter or identi.ca.

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