[ Understanding the Debate ]

Why are software patents so bad ? To understand the debate, a short reminder about Intellectual Property (IP) might be appropriate. An explanation about software nature and its implication inside our modern society would also be needed.

Although the first privileges similar to Intellectual Property Rights (IPR) appeared at the 15th century, the expression "Intellectual Property" itself is quite recent as it was first used with the creation of the United International Bureaux for the Protection of Intellectual Property (BIRDI) in 1893. The BIRDI was in charge of the application of the two conventions that set the basis at International level of the two IP branches :

- 1886 Berne Convention on the protection of literary and artistic works - copyright
- 1883 Paris Convention on industrial property for patents and trademarks

Whereas those two conventions are still relevant, the BIRDI were replaced in 1967 by the World Intellectual Property Organisation (WIPO), an extension of United Nations.

IP offers exclusive rights on creations depending on what we are talking about. While literary and artistic works are protected by Copyright, inventions, which provides "technical solutions to technical problems", are protected by Patent Law.

To benefit from Copyright protection, the creation should be original and fixed on a material support. Its sole publication is then enough for the creation to be protected - no registration, no fee.

Patentability criterias as for themselves are the following :

- novelty regarding the state of the art
- non obvious for a specialist of the sector
- subject to industrial application

On the contrary to literacy and artistic works, inventions shall be officially registered to benefit from patent protection. This implies a bunch of fees, multiplied by the various territories where the invention will be used.

A software is a set of instructions and data aimed at being executed by a machine so that the later can perform either one or several special tasks. By definition, software and hardware are two different things. Just like a music and a musical instrument ; a novel and a printer.

Written as source code by a human in a specific language, the software is translated through a compiler into a machine code - with zero and one - that then gives rise to electric signals. Exactly like what is happening when a dvd player linked to a screen displays a movie.

Having not a single technical aspect in itself - one cannot "touch" it - software is far away from an invention, and can therefore only be subject to Copyright protection as literary work.

Beyond its non technical nature, it is important to note that software does not meet with patentability criterias anyway : thousands being developed every day, the "state of the art" cannot be defined ; the distinction between obvious and non obvious is also impossible to make, and the concept of software patenting is just as odd as mathematics patenting.

Now, let's take a higher view on the issue.

Whereas Patent Law spirit should encourage innovation by giving inventors the privilege to commercialize their creation without worrying about competition during a certain period, software patents have quite the opposite effect.

Patent costs, which include deposit, licensing and law suits, are indeed totally disproportionate in comparison with software development, production and distribution budget ; in fact, it is simply hundred times more expensive to get a software patented than to commercialize it.

The consequences are terrible in terms of innovation.

Because today, software are everywhere. In everything we use in our everyday life. In all sectors of industry. They are in the heart of our information society but also far beyond.

Innovation in the field of software has consequences on innovation in the field of environment, communication, health, agriculture, transportation, .. and many, many other sectors which implies the use of computer systems.

This is why software patents are so dangerous. They do threaten our future.

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