I find it difficult to believe that anyone would find patenting our sort of
software worth doing, at least as far as small stuff , typical scientific
research oriented software is concerned. It would be incumbent on anyone
holding a patent to show
a) that there is infringement. This would open up the patent holders
software for close examination and without doubt various aspects of their
software could be shown to exist in other programmes written earlier, in
which case they would be likely to lose. They might even then be judged to
be infringing someone elses patent! I suspect that anyone holding a software
patent is going to be loathe to open their own software up for inspection in
case they lose everything. Proving infringement in cases like this is
exceedingly difficult.
b) they would have to show that their software is not obvious i.e. that
someone "skilled in the art" at the time of writing could not have done this
themselves. It would be extremely difficult for a company to prove
non-obviousness in this area, especially since many of us would say that
they could equally well have come up with the idea and that therefore it
would be obvious.
The result of this is that no matter if someone takes out a patent on their
software we can generally ignore it, becaue the patent holder would have to
pursure a lengthy and very expensive legal case with a strong likelihood of
failure.
So while I too think that software patents are a bad idea, I actually think
it will in most cases turn out to be unenforceable. Typical muddle and lack
of understanding of the real world that we have come to expect from the
European Union. Of course it could be that many of the members of the
Europarliament are also lawyers: if so legislation of this sort is going to
be of considerable personal profit to them. Or am I just being too cynical?
Mike Glazer
Oxford University
