High Level Lie

Some want to alleviate the concerns over software patents by claiming that only major achievements would be patentable. That is just not realistic given how the patent system works.

It doesn't mean much what any legislation says about how high the level of an invention must be to be patentable. That requirement can be stated by the law in the most verbose and flowery way, and it still doesn't have an effect. There is no patent law anywhere in the world that explicitly allows "trivial patents". Still it happens everywhere that they are granted. It's not a matter of legislation. It's always at the level of execution. In theory, there would never be trivial patents anywhere, and even copyright law doesn't protect everything (only that which deserves protection).

Until there is a fundamental change in direction, the European patent system breeds patents on low-level ideas. It's always the desire of the patent applicant to receive a patent on as broad and general a concept as possible. The broader the patent is, the more powerful it will be in dealings with competitors and the extortion of protection money. The higher the level of the patented concept is, the more specific it is, and the less likely anyone else is to inadvertently "infringe" upon it. So the economically optimal level of a patented idea is to just meet the minimum level that is required to pass the examination. It's the task of patent lawyers to phrase patent claims on even the simplest ideas in such a verbose and inflated way that the patent examiner will be impressed even when he shouldn't be.

Only a departure from quantitative thinking on patents and from patent inflation can truly increase the quality of patents. If countries and companies stop measuring the result of their innovative efforts by patent counts, then we will have a climate in which patent offices will be able to have their examiners focus on patent quality rather than quantity. In the particular case of the European Patent Office, its self-financing by processing fees would also have to be changed.

Even non-trivial software patents are negative for Europe's economy. Admittedly, something like the MP3 algorithm for compressing music data is a major intellectual accomplishment. However, even that one is not deserving of patent protection because during the 20 years in which a patent is valid, even the MP3 format would in all likelihood be, or have been, reinvented by someone else. There is no benefit to society in granting patents on "inventions" that will be made anyway.