Boyle on geeks and EU software patents

James Boyle has yet another terrific article in the FT, this time on the need for empirical evidence in the thorny debate over the EU software (or "computer implemented inventions") patent directive.

"It does not help the debate that well-intentioned people simply disagree about what the proposed directive actually means; an indication of the dangers involved in law-making about property whose boundaries are marked, not by fences or walls, but by vaporous ideas and concepts. A property right crafted with one goal in mind can spread, amoeba-like, to cover situations its drafters never intended. That was the certainly the experience in the US."

What you've got here is a difference of values. Because there is no widely accepted empirical evidence (and indeed very little empirical evidence at all on the effects of intellectual property in a digital age), there is no objective process whereby somebody who believes in the positive benefits of software patents can convince somebody opposed to them of their point of view. So what plays out in the public debate on the subject is a shouting match over what each side believes might be the positive or negative effects of implementing a software patent directive in Europe.

James thinks the EU should be looking to the US for evidence:

"For example, Professor James Bessen and Robert Hunt of the Federal Reserve Bank found that the increase in the level of software patenting in the US was associated with a significant decline in investment in research and development by software companies. As more and more patents were granted, companies spent less on R&D. Correlation does not prove causation, as the authors appropriately caution. Nevertheless their conclusions are clear about the assumption that granting stronger property rights in software will stimulate innovation. Â?Our evidence suggests this assumption may be incorrect in the case of software patents. If, instead, the legal changes create patent thickets, the result might well be less innovation.Â?"

We can't really know what the effect of software patents would be in the next few years until we implement them and find some objective way of observing, measuring, analysing and evaluating what happens. But here's the rub - we can't really find out what the effect of not having software patents might be unless we avoid implementing them and find some objective way of observing, measuring, analysing and evaluating what happens. Just to complicate matters, the European Patent Office have been merrily granting patents on "computer implemented inventions" for many years now, as have national patent offices such as that in the UK, despite a statutory prohibition on the granting of such patents.

Me? I tend to lean, as regular readers will know, towards the avoidance of pure software patents, partly because, as James says, the Besson report shows a correlation (even if it's not a definite causation link) between software patents and reductions in software R&D spending; but partly also because I don't think it is sensible economic policy to grant 20 year monopolies in a market where the products have a life of a few years at the outside.