Friday, April 08, 2005

Engineers, patent lawyers on software patents

from pcpro:

Software engineers were almost unanimous in their derision at attempts to define what constitutes technical contribution yet were equally unwilling to support a patent policy that didn't nail down precisely what and what isn't patentable within software. They said that no definition for technical contribution they had seen 'painted a bright line', between what is and is not patentable.

Yet many of the delegates we spoke to wanted protection for software they had written - they just didn't believe that there exists a definition for software patents that is robust enough to ensure that weak, overly broad in scope and shallow in substance patents, such as Amazon's 'one-click shopping' US patent, won't be granted in the UK or EU.

Richard Carter, a programmer for Bank of America, said that despite the benefits that patent protection offers, the other problems it brings with it mean he'd prefer to not have them at all.

Those problems pull in every direction. Attorneys want a broad definition that will not become redundant with the advent of new technologies. This gives large IT companies the prospect of filing rather tentative, adventurous patents which they can afford to fail in. But any that are granted are extremely powerful - hence the
consternation at the patent applications for things like different ways of pressing a button on a PDA. What's bad for the marketplace about this is that only corporations with large enough coffers can afford to play these games. [LBE note: not really true.]

Software engineers are of course painfully aware of this: they need very precise and detailed legislation that will allow them to assess whether what they are writing is patentable and whether it infringes other patents.

They need this because when they read about dubious patents being granted under the more lackadaisical US patent system they realise that with the best will in the world on the part of the UK and European patent offices, there are actually no safeguards to stop the same happening over here.

Not so, says the patent office. We are the safeguard to prevent us from following broad approach of the US. 'We realise that a patent is an incredibly powerful tool in the marketplace,' said Jeremy Philpott of the UK Patent Office. 'And we don't grant them lightly.'

And so the issue boils down to one of trust and expertise. Even with minutely detailed legislation on patents, is it realistic to expect a software engineer to make a legal judgement on the thousands of patents they could be infringing or whether they have 'invented' something patentable? Likewise, is it realistic to expect a patent attorney to be a technology expert at the same level as the engineer?

Even among the engineers present at the workshop, there were disputes over the patentability of some applications under examination, simply because of their various specialisations.

Asked how many patent examiners were experts in technology at the UK patent office, Philpott replied: 'Dozens'. But still the delegate wasn't satisfied and suggested the examiners post their CVs online so that the public could know how qualified they were to judge patent applications.

Perhaps the most hope we have that Europe's patent system won't follow in the broad wake of the US is the system itself. In the US, a patent examiner is a stepping stone job on the way to being an attorney. Philpott said that in the UK, it's a career taken much more seriously.

He said that a patent examiner studies an application for a day, sometimes longer. Conversely, as an indication of the attention given by its US counterparts, patent expert Greg Aharonian a few months ago offered some statistics from the US Patent Office for last year. Despite having a database of some 4mn samples through which to search for prior art, the average patent cited just two. 'In 10 years the [US] PTO has been unable to do anything to improve patent quality, especially in terms of handling non-patent prior art. Everything they have tried has been a failure.'


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