Patents and Patent Reform: An OFE Academy Fellow Interview

For some years now, I've been a Fellow of a European think tank called the OpenForum Academy, which focuses on all things open: open standards, open source, open data, open research, and so on. It's an affiliate of a non-profit called OpenForum Europe, which advocates for same causes bofore the legislature and agencies of the European Union and those of its constituent states. The EU Parliament as well as governemtal agencies and legislatures in the U.K. and elsewhere have been actively engaged on these topics, and have welcomed this input.

OFE Academy is made up principally of an invited group of academics, journalists, technical experts and others that are recognized for their leadership and expertise in the area of openness (you can find a list of them here). Recently, the Academy launched a Fellow interivew series, and this week the interviewee happens to be me. Below I've pasted in a few outtakes from the much longer interview, which you can find here.

MB: I would like to talk about patent reform. I know you have done quite a lot of work on this and so I was wondering if you could give our readers – particularly those in the EU who might not have been following the debates so closely – a top-level view of the current state of patent regulation in the US.

AU: Patent reform suffers from several challenges. One of which is the concept of the patent as a one size fits all, legally speaking. In software there is little doubt that the engineer would create an invention with or without patents and indeed in the US until the late 1990s, software was not even recognised as being patentable. And yet there was an enormous amount of software written in the golden age of software. You could even say that the first golden age of Operating System development occurred when patents were not available for them at all. And indeed in Europe the ability to patent software is very limited and yet innovation continues. So my personal belief is that there would be just as much innovation in software if patents were to become unavailable today….

MB: And what has the US Government and US Congress done to address this? Can you talk a little bit about the policy and legal rather initiatives that have been put forward to address concerns around "patent trolls".

AU: There is a lot of lobbying in the US on this, especially from large patent holders. But you have to understand that these companies are both patent owners and patent consumers. So they have a very schizophrenic relationship as well. In fact, many of the companies with the most patents comparatively rarely actually sue anyone for infringement. They worry as much about being sued by other owners of patents, so at the same time as they invest enormous amounts of money in patents they also want to have a patent system where they can defend themselves successfully when they think that they are being sued unfairly. So there is something of a check and balance and it would be wrong to assume that most high-tech companies necessarily campaign against reform. They in fact are in favour of legislation that would curtail trolls….

MB: So how do you deal with this? If you are an SME today, generally speaking what do you think is the best strategy to innovate? Should you care about this at all or is it not worth the time and effort?

AU: …Open Standards are one way that SMEs benefit, because when they implement standards they are covered by patent licensing obligations so that an SME can implement the standards either for free or with a reasonable royalty which is no higher than what their competitors are paying — that is one example. In Open Source, there has been sort of a safe zone that has been largely erected around major open source distributions. Partially because the big companies are so heavily invested in Open Source themselves, they do not see any self-interest in disturbing their patents….

MB: You talked a little bit already about the differences between the US and the EU on patent regulation. In the EU software is officially not patentable – though there are ways to get around this. At the same time, in the US we have seen some recent developments (such as the Alice vs CLS case) that indicate a will to curb the limitless patentability of software. Do you think there is some level of convergence between the EU and the US on patent regulation, are we going towards some sort of a common system and is that something that is desirable?

AU: No, personally I have not seen any indications that the EU would be likely to budge, and indeed I think that the EU is becoming progressively more sophisticated about the importance and the values of Openness, and the grant of patents is, of course, a step in the opposite direction. In the US, I think that there is the ability for incremental reform, but it is difficult for me to imagine in my lifetime any fundamental change in patent reform….

The thing that provides some concern about the EU however, is that the US is such a large market and IT products and services are by definition global in order to be successful. If a vendor of a product or service can be sued in the US, that is a very substantial impact on their business. Particularly, when you get into things like hardware or mobile devices or chips where access to a global marketplace is essential in order to make the participation economically viable. So even when a patent would not be infringed in the EU, this could nonetheless be an enormous or maybe even fatal impediment to an inventor in the EU. Convergence of laws is not in some ways necessary to have an impact, because of the de facto economics of the marketplace. In some ways, the most restrictive jurisdiction can win, even though its formal legal reach ends at its borders….

MB: Let us jump to another topic. I saw that you have just finished writing your second book of fiction, which was self-published just like the first. Can you tell us what it is about?

AU: I have written the equivalent of around twenty books on different areas on standards and standard setting on my web site,, since I started it, but a few years ago I decided to try my hand at fiction and wrote a cybersecurity thriller called The Alexandria Project. All of which is actually not only technically accurate, but much of which I wrote has actually happened since then, which is a little spooky. The new book, which will be out around the end of June, is about hacking a presidential election. One of the underlying themes is the idea that the US has not always done the best of jobs in electing presidents. One of the underlying premises of the book is a group of hackers in Europe deciding that if the US wants to decide that it can elect the leader of the Free World, maybe some other countries ought to have a say in the matter. That gives you sort of a hint about where the book might take you. 

MB: Any last remarks before we wrap this up?

AU: The only parting thought I will share is that Openness matters, and Openness is in the hands of the legislators, and legislators listen to voters. So I would encourage all of the readers to remember that their voices matter and that it is their voices that can make things happen.