Imagine a beautiful and elegant ballroom, tables elegantly set, a podium at one end, coffee laid out at the other. Now fill the ballroom with a hundred important and influential experts on the patent system. Bring a bus load of top researchers from the US, Italy, Germany, Sweden, Great Britain. Over two days, look at the patent system from every angle.
Does the patent system produce the benefits it claims? How much does it cost society? Does the EPO deliver high-quality patents as it claims, or is it churning out more and more junk? Can the quality problems be fixed, and if so, how? Is the 'one size fits all' model working, given the huge disparities between different sectors, and between small and large businesses in the same sector. Are there plausible alternatives? Do we need to trim back the patent system first, and then introduce alternatives, or can competition to classic patents fix things?
Is software patentable at all in Europe, or is the EPO granting patents on something totally different, a kind of magical machine who's only function is to ban certain forms of software? Has the global patent system become an out-of-control, unregulated money-printing machine that is creating a massive tax and credit fraud that is threatening global banking stability? Or is the patent system producing real value that underpins our new virtual economy?
How come that agriculture, based on open exchange of knowledge, has managed to solve the problem "how to feed us" over the last fifty years, with not a single famine caused by agricultural failure (all famines having been caused by political incompetence, war, or natural disaster), whereas pharmaceutics, based on patented knowledge, has spectacularly failed to solve the problem "how to keep us healthy".
Are the government agencies talking to each other, or are they stuck in their ivory towers, riddled with dogma, jealous of power, insane with politics? Have the patent lawyers and policy makers forgotten the basics of science and maths they learned in high school, so they can now repeat, like zombies, "patents correlate strongly with innovation", ignorant that airmiles, dog excrement on the side walks, the price of espresso, and numbers of disposed diapers also correlate strongly with innovation. Do the words "correlation is not causation" have no meaning in the Commission and the EPO?
And finally, after all these questions, the overwhelming sensation that the patent system is, really, in a terrible crisis caused by simple technological change. We have moved from steel and plastic to software. Like it or not, modern industry is software based, and the patent system never had a choice except to try to move along as well. But software-based industries cannot tolerate the patent system in the same way as older industries could, the balances have shifted, and industry is starting to revolt against what it sees more and more as a form of malign parasitism.
Mark Shuttleworth captured it best. Patents are society's gift to inventors. But society is prudent and gives only when it has no choice. When there is a magical recipe behind a valuable product, for example the alchemy that produces a silver mirror, it's worth granting a short monopoly to extract that alchemy from its inventor. But when the product is wholly self-describing, when society can see exactly what is needed to recreate and copy it, that monopoly is worthless to society.
This, ultimately, is the best argument I've ever heard against software patents: society does not benefit an iota from granting them, and thus there is no defensible reason for the patent offices, which are meant to act on society's behalf and not that of its officers and friends, to grant them. It's also a powerful argument against excessive copyright, but that's a different issue.
But I also heard a very good argument for patents, at least of a certain unconventional form, from Lee Hollaar, who points out that even in self-describing software, there are valuable alchemies at work, and it's very hard to extract these from source code or visible behaviour. Professor Hollaar comes up with an alternative to the classic iron-age "all or nothing" patent, something he calls a "mini-patent", an elegant idea that smells more like copyright and trademark, and one we'll be seeing more of in the future.
Sometimes it's worth paying a small price to document the alchemy behind a piece of work. When that price is fair, and when the price is set by society, not a self-appointed high priesthood that live off the excesses of the system, we start to see that a working, balanced… dare I say it, ethical patent system is a real possibility.
Or, as David Martin, CEO of M-Cam said, we can wait for global banking system to wake up and realise that the patent offices have been printing coupons at a mind-boggling rate, and these coupons are now underpinning a multi-trillion credit bubble, and these coupons are… in fact… largely worthless.
Over two days, the ballroom remained packed, with some people having to stand at the back. The event closed with a thundering speech from Bill Kovacic, the US Federal Trade Commissioner, who lambasted government agencies for their inability to talk to each other. "Get out of your ivory towers and talk!" he said, and finally, if EUPACO-2 achieved one thing, it's that we got many people out of their ivory towers to talk. Some still seemed stuck in the past, re-iterating the childish "patents are go(o)d" dogma. But at the same time, the self-critical EPO's Scenarios project, the appointment of a new reforming president at the EPO, and the heavy involvement of many people from the Commission at EUPACO-2 filled those present with stong optimism that we're seeing a consensus on the problems, and that it still is possible to avoid a collapse of the patent system and the economic trauma that would follow.