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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Sunday, September 12, 2004How to avoid some blind alleys.Here and there press releases and other statements from individual patent professionals or of their associations and Institutes appear which might be read as if they would suggest a view according to which an "Open Source Community" is to be blamed for causing all of that current turmoil in patent politics. Disgusted by the outspoken preference of some groups within that Open Source Community for the intellectual commons, perhaps some patent professionals might covertly or openly think that the world might be a better place to live and work if Free / Open Source Software (F/OSS) does not exist. However, such conclusions would be misleading.Independently of any pros and cons of F/OSS it surely would be wise if every serious discussion of patent policy is based on the assumption that F/OSS is here to stay. F/OSS is simply a success story, and any attempt to turn it down in order to save some particular details of the present patent system would surely be hubris. Some observers even think of F/OSS as an embodiment of a new paradigm of allocation and distribution of intellectual resources. The stakeholders in this field of software creation and distribution are not only those secularistic redeemers like Richard Stallman from FSF and his followers from the Eurolinux Alliance fiercely fighting pro intellectual commons and against the present patent system but also more business-minded people, some of them even wearing a conventional business suit and actively utilising the patent system. IBM for example hugely profits from bringing Linux-related hardware and support services to market, at the same time being one of the most active companies with regard to patent filings. The Linux distributor SuSE AG now belongs to Novell, Inc., which had been active in patenting at least in the past. And, vice versa, there are a lot of SMEs making their profit in conjunction with closed-source software and nevertheless supporting Eurolinux Alliance in their anti-patent fight. There is simply no one-to-one mapping of closed-source software and F/OSS, on the one hand, to pro-patent and anti-patent moods, respectively, on the other hand. The reality is more complex, despite the fact that some anti-patent NGOs loudly claim to be the only and true stakeholders of the F/OSS scene. In 1994, the European Patent Office had published the results of a representative survey concerning the acceptance of the patent system in Europe. This study clearly pointed out that SMEs significantly underused the patent system. Now, it seems as if in those days SMEs have passively ignored the patent system whereas nowadays some of them are no longer staying aside but, inflamed by Eurolinux, actively attempting to undermine the patent system. Therefore, one of the key insights for curing the present crisis of the patent system might be that one of the more important causes thereof is a scarcity of acceptance of the present patent system by SMEs in the field of IT. This deficiency might be considered partially home grown as it looks as if in the 80es and 90es of the past century little efforts have been made by patent professionals to remove in the general public the widespread urban myth that software-related inventions cannot be patented at all in view of Article 52 EPC. Perhaps the current difficulties can be seen as something like a late nemesis in return for the lapses that occurred during those years.
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