Torvalds urges legislators to exclude software from patentability

10 February 2012

Torvalds: "Exclude software from patentability"

25 February 2006

Linux creator Linus Torvalds has urged European legislators to abandon plans that may allow software to be patented, saying it will stifle innovation. But critics say his solution is too simplistic.

Linus Torvalds has not had a great year when it comes to patents. First, he's seen his brainchild Linux operating system threatened by software maker SCO for patent infringement - a charge that could potentially undermine the entire open source movement.

More recently, Microsoft's Steve Ballmer has been dropping hints to Asian businesses that using Linux may infringe some of the patent rights held by the software giant.

Torvalds has also seen European regulators get in a mess trying to agree that software should be patented, and he's desperate to stop them deciding that it should.

The EU has postponed its 'final' decision, which is now expected in 2005.

Aside from the sheer indignity of seeing SCO drag the Linux name through the legal mud, Torvalds has more fundamental objections to software patents. Torvalds, alongside Michael Widenius, one of the creators of MySQL, and PHP creator Rasmus Lerdorf, issued a joint statement warning of the dangers of allowing software to be patented: "Software patents are dangerous to the economy at large and particularly to the European economy."

According to Torvalds, patents threaten to stifle true innovation in software development because the system favours large businesses over smaller developers.

"Copyright serves software authors while patents potentially deprive them of their own independent creations. Copyright is fair to all because it is equally available to all," he says.

Reaction...

Gary Barnett analyst at research firm Ovum says the future of software development depends on protecting those that invest in innovation.

It is important to have some mechanism that encourages investment in innovation. The companies that plough billions into research and development need to be sure that their investment is going to give them an advantage that lasts longer than a couple of months.

What is important for the software industry is that patents are issued responsibly. Without controls over the level of innovation needed to qualify, there is a danger that some kind of patent 'arms race' breaks out.

I am opposed to the European proposals because I don't think they strike the right balance. The test for issuing does not require a high enough standard of innovation. But philosophically, I think it's important to support the innovation.

Michael Cover, partner in intellectual property at law firm Faegre Benson Hobson Audley, says there are problems relying on copyright to protect innovation.

One of the drivers for introducing patent laws is to create a level playing field, to reduce the likelihood of differences between national laws. This would at least create uniformity within the EU.

As to whether the approach being taken is the right one, it's a difficult area. There are problems associated with patents: they are expensive to file and the system favours large organisations.

But you know where you stand with patents. They're registered, and you can find information on patents held in your area of work. The process of litigations is also very expensive.

With copyright, the protection lasts for a very long time - 70 years; but it's very difficult to search for who holds copyrights.

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