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FFII's "World day against software patents" on IPKat

3 September 2008 by Ch. Tronche | Filed under Software patents.

First, I must tell that I’m a former FFII member (and a regular IPkat reader).

I understand that the somewhat dry style of the FFII release is uselessly offendant to IP lawyers around, and that this doesn’t add anything to the debate.

This said, I met many IP professionnals at FFII, so swpat involved people shouldn’t underestimate the depth of FFII analysis. It also means that not every IP lawyer is in favor of software patents, far from it.

I’m personally against software patent on the basis of economic arguments: software is fundamentally different from physical products in term of production (copy) and distribution time and cost: zero in the software world, most of the problem in the physical world. It thus makes no economical sense to grant a twenty years monopoly for software, much less an algorithm.

There’s however a thought I’d like to share about law firms (especially IP law firms), some light was shed onto by the derailing of the EC directive on the so-called computer implemented inventions, largely due to the FFII efforts.

Software patents essentially don’t exist in the EU law, and are under attack in the US. No one can predict where it will end. May be something close to the ill-fated directive on CII will be adopted eventually, may be software patent will finally be rejected in the US, hard to tell. To act in the best interest of their clients, law firms should make this clear, at the very least.

Unhappily, this is hardly the case, and I know of at least one IP counsel in France, not worse than any other, that took the adoption of the CII directive for granted (self delusion ?). Some of its startup clients, that I also know of, so advised, applied for patent on software terms. At least one of these startups were let down by its VC once the directive was rejected, on the basis the business plan was no longer sustainable with no way to protect the product. The point is that such episodes globally undermine the trust between startups and law firms, and this is never a sane situation.

If you’re a good IP lawyer, there’s ton of money to make in a world without software patents, so tell your client the truth: patents don’t make software defensible.

PS: I’m the happy owner of trade marks, and I’ve very good relations with my IP lawyers.

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