Perspective is everything when it comes to patents

There’s a bumper sticker on countless vehicles across this continent which reads “He who dies with the most toys wins.” In the world of software patent law, the one with the most patents is either the clear winner or the clear loser, depending on whom you’re talking to.

Richard Stallman, the Cambridge, Mass.-based writer of the GNU Public licence, recently gave a speech at the Cambridge University Computer Lab on the issue of software patents for the Foundation for Information Policy Research. The crux of his talk was that patents victimize developers.

“It is not about patenting software…instead, it is about patenting ideas. Every patent covers some idea. Software patents are patents which cover software ideas, ideas which you would use in developing software. That is what makes them a dangerous obstacle to all software development,” Stallman said in his speech.

“You may have heard people using a misleading term, ‘Intellectual Property.’ This term, as you can see, is biased. It makes an assumption that whatever it is you are talking about, the way to treat it is as a kind of property, which is one among many alternatives. This term, ‘Intellectual Property,’ pre-judges the most basic question in whatever area you are dealing with. This is not conducive to clear and open-minded thinking,” he continued.

Mississauga, Ont.-based Anthony de Fazekas, a partner at Keyser Mason Ball LLP who specializes in intellectual property, disagreed with Stallman’s objection to the term.

“I teach a lot of courses and try to bring a business approach into it,” he said. “I define intellectual property as a set of legal tools to protect innovation. Intellectual property in my mind is essential. It has value, and there is a clear interest in protecting it, but it is very abstract. It is an intangible – nonetheless, it needs to be protected somehow.”

According to de Fazekas, the benefits of the patent system are undeniable. They encourage innovation and introduce new ideas to the surface, he said.

“But for patents, it would be harder for small companies to squeeze their way into the marketplace,” de Fazekas said.

This, according to Stallman, is not the case.

“This is a story which ignores the way that the business actually works,” Stallman said. “Large companies have lots of patents. IBM in 1990 had 9,000 U.S. patents, so if you make a product that is not a toy, you’re probably infringing on some of their patents. The myth of the starving genius inventor is that has spent years working by himself, and not as a part of a community of scientists or engineers.”