Sadly, there’s nothing genuinely new about this story, but a recent discussion on the Fedora Games mailing list demonstrates the sort of chilling effect on innovation and impoverishment of the intellectual commons that occurs today because of a broken, outmoded US patent system and its misapplication to software. I’m at a loss for words to express how absurd these “patents” are.

Frequently Asked Question: Do software patents exist in the EU?

Answer: The problem is that software patents exist in some ways in the EU. The power of patent governance is split between a legislature, an executive, and a judiciary.

The legislature (the European Patent Convention) says that software ideas are not patentable.

The executive (the European Patent Office) ignores this and approves software patent applications.

The judiciary (the national courts) usually declares the EPO’s software patents to be invalid whenever there is a court case.

I’m working on Guns, Germs, and Steel, by Jared Diamond. Good book so far, although I’ve ground almost to a halt halfway through. (I’d probably make better progress if it showed up as blog-sized chunks in my feed reader every day.) I like sweeping accounts of history, and this one presents many new ways to look at things. It also gets me thinking about the current sorry state of the patent system, with these excerpts:

Few events have created more fodder for the blogosphere, more fuel for Microsoft critics and more emotional responses than the Microsoft patent deals with Novell, Linspire and Xandros. While putting together a list of things people hate about these deals is easy, generating a list of positive aspects is much harder. So I tried to take a more balanced approach and put together a love/hate list about these deals.

Mylatest blog entry began with this paragraph:

Messing with MP3 files is, for some people, a synonym for illegal use of copyrighted music. Well, actually it’s not.

The reason I wrote that incipit remained unclear to many, that didn’t seeany link between this first phrase and the rest of the article. I therefore decided towrite a few blog entries on the subject. This time I’ll talk about theMP3 format in itself.

In early 2006, the European Commission began talking about a “final attempt” to fix the European patent system.

We heard the standard concerns about Europe’s innovation gap. “How can we catch up with the Americans?” “How can we prevent the Chinese invasion?” “We need a better system of intellectual property rights.” “We need stronger protection for rights holders.” These noises came out of the Commission, in meetings, and speeches; we heard echoes from large software companies and the industry clubs they sponsor. SAP, in particular, began calling very loudly for a cheaper, stronger patent system.

And the focus of all these noises has been “EPLA” (the European Patent Litigation Agreement), a new system designed to make it easier to enforce patents. EPLA is not, superficially, about software patents at all. But dig deeper, and it’s exactly that: a third major attempt to introduce software patents, by removing all remaining regulation of the patent industry.

I know that many people come to the FFII—as I did—because they feel a deep sense of injustice at how the smaller players in IT are consistently squashed by special interests and monopolists. But I’m going to look at our core concern—software patents—from a different angle, one based more on economics and less on emotions.