Since man first invented the wheel, society moves forward technologically by inventors standing on the shoulders of those who came before. This advance in our knowledge has improved our lives immeasurably, so much so that society wants to encourage inventiveness, by rewarding those that invent new things a monopoly in that invention (a patent) in exchange for the knowledge that future generations can build upon.
It is important to understand this clear quid quo pro between society and the inventor. Based on that understanding it is not unreasonable to expect that if the patent grant is going to generate a great deal of money for the holder, that society should expect a similar degree of inventiveness for others to build upon.
This to me is the crux of the problem with grants of patents on Business Methods or Software Functions (I use this word function here because the alternative, the actual software itself – which does take considerable time and effort to get right – is already protected by the monopoly rights of copyright. Defining functionality is comparatively a trivial exercise.). The level at which patent protection can be applied for is several thousand times simpler than would be needed in a fully functioning business, or a substantial software programme. Whilst a physical product can be broken down into smaller patentable components, the ratio is nowhere near as great.
This leads to two consequences. Firstly, and this is the most important point, is that to achieve anything useful in writing a software program, you could potentially be effected by thousands of patents on the little individual functions making up software. Secondly, these little individual functions do not provide anything like the benefit to society that would be appropriate for the monopoly position granted to them.
It is also worth asking why patent protection is being considered at all. Given that we already have copyright as a mechanism for society to give a monopoly to encourage invention why do we think that the patent approach is always needed.
It costs money to obtain a patent. This mitigates against the small organisation spending the time an effort to patent all the various small functions that go up to make any useful software program. By contrast, large global corporations can afford to invest to that level. The consequence of that is that only the large mulinationals can really protect themselves via the patent route.
Considering this from a European perspective, all of the substantive software companies with the one exception of SAP are American. Thus allowing patents of software functions in Europe can only harm Europe.
But there is a broader problem. Open source software, developed by the thousands of individual contributors around the globe are able to develop software that can – for the first time – compete against the monopoly stranglehold that Microsoft has on the industry. Unfortunately open source software has a real problem. It has been competing on technical excellence spread by word of mouth, and unlike normal commercial enterprises does not translate that technical advantage into money. This prevents it from either entering into the patent game, or from spending the cash lobbying governments to take decisions in its best interest.
Monopolies are not in the best interests of society (even more so when the monopoly is based on the other side of the world from your society). That is why we have many many mechanisms to prevent monopolies from abusing their monopoly powers. With open source we have another mechanism that can fight against these monopolies. But allowing software patents could so easily destroy that weapon.