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Back to work!

When Nathan Myhrvold left his job as chief strategist and CTO for Microsoft to form IV (Intellectual Ventures), a company that was entirely devoted to acquiring and exploiting patents, he is reported to have said that "intellectual property is the next software". The dilemma before the Supreme Court is to determine whether the constitutional interests of "science and the useful arts" are better served by a patent regime where "intellectual property" can be regarded as "the next software" - where ideas are distributed because the inventor or the "owner" of an idea has the protection of a patent - or by one that limits patent monopolies to allow greater participation in the application and development of ideas.

Traditionally, academic innovation and discovery has depended on the open accumulation and distribution of knowledge. Most scientific developments – and for that matter, artistic, political or social ideas – have evolved from a common pool of knowledge where new developments are built upon free access to the developments of your contemporaries and those that have gone before. It can be argued that a liberal patent regime, where anything can be patented, works against this philosophy, accumulating the ownership of ideas into fewer and fewer hands.

The dilemma was recognised by Thomas Jefferson. "That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature," he wrote in a letter to Isaac McPherson in 1813. "Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body."

Coincidently, the European Patent Office (EPO) is asking itself a similar set of questions about the patentability of software. The Foundation for a Free Information Infrastructure (FFII), and some parliamentarians, are taking the view that the EPO is bypassing the European Parliament in order to broaden the legitimacy of software patents across the European Union. There is a distinct possibility that EPO may loosen its definition of software patentability at the same time as the US takes the decision to tighten its definition of patentability.

In 1994, Richard Stallman told the USPTO hearings "A decade ago, the field of software functioned without patents. Without patents, it produced innovations such as windows, virtual reality, spreadsheets, and networks. And because of the absence of patents, programmers could develop software using these innovations. We did not ask for the change that was imposed on us. There is no doubt that software patents tie us in knots. If there's no clear and vital public need to tie us up in bureaucracy, untie us and let us get back to work!"

For other feature articles by Richard Hillesley, please see the archive.

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