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Software patent proponents claim all the time that software patents have so far not been a practical problem, or more specifically, that SMEs and open-source software have not suffered from software patents so far.

It's not true that software patents have not yet been enforced on a large scale. It even happens that IT-focused websites report two or three patent-related incidents on the same day. Publicly traded patent profiteers such as Acacia and Forgent enforce patents against large numbers of companies at a time, and they increasingly look at opportunities in Europe.

Those software patent cases that go to court are not even the tip of the iceberg. The nature of patent disputes is that they usually don't go to court. Most companies, especially small and medium-sized ones, can't afford expensive patent litigation and, more importantly, can't take the risk that a court might order them to stop selling some or all of their products. So they have to pay or make other concessions to the patent holders.

It's generally irresponsible to deny the existence of a future threat based on the past. Those who say that open-source software has thrived in the USA despite broad patentability of software jump to an inadmissible conclusion. There were many people who also said before 9/11 that airport security was sufficient. If a risk exists, then it has to be dealt with. If a proposed legislation creates or exacerbates a risk, then it has to be modified so it provides safety. It's not enough to be wise after the event. Europe should not wait until an equivalent of 9/11 with respect to software patents occurs.

Patent holders are waiting for legal certainty before taking too much action. They firstly want the legal basis for enforcing their patents. Given the uncertainty as to the outcome of jurisdiction, a patent holder that starts a litigation today might lose the case. Also, patent holders know that any software patent enforcement activity in Europe would at this stage increase the likelihood that the EU declares software patents unenforceable. Therefore, some are waiting that the software patent friendly jurisdiction of the European Patent Office will replace more critical national jurisdiction by treaties like the EPLA.

The patent threat to open-source software is not a question of the past, but one of future growth. Up to a certain level of success, today's market leaders have no strong motivation to use patents against open source. However, there is a pain threshold, and no one can accurately predict where it is. Beyond that threshold, the risk will be considerably higher than it used to be in the past.

Click here to read about the lie that the ratification of software patents was necessary for harmonization purposes