[Fsfe-ie] Possible opinion formers: academics

James Heald j.heald at ucl.ac.uk
Wed Dec 3 01:41:48 CET 2003

More random trawling with Google, looking for people who may credibly 
shape the debate, and/or possibly know how the process is going...

For academics, there may be at least four or five groups we should be 
thinking about.

*  Lawyers.   Any change in the law will presumably involve consultation 
with lawyers -- What is the law now?  What is the legal effect of 
such-and-such changes?  Would they clarify things or create a legal 

*  Economists / Business Studies.  What drives innovation?  Would 
software patents help or hinder?

*  Business incubators, technology transfer specialists, and successful 
academic entrepreneurs.  Experience from the sharp end.

*  Free software users.  Throughout CS, mathematics, physical sciences 
and engineering there must be a lot of researchers who use free software 
because it works, and because it makes the budget go further, and who 
wouldn't want it crippled by patents.  They may also be drawn by the 
kindred spirit of the free software model and the open scientific 
process.  A silent majority which could be very powerful if we can get 
it mobilised ?

*  Researchers specifically working on free software, and as part of the 
free software community.

1.  Lawyers.

So who are the country's experts on IT and IP law, that the policy 
makers may want to formally or informally bounce things off?

Obviously there may be independent barristers with particular renown, 
the major city firms of solicitors, specialist patent agents, in-house 
lawyers of key corporates, and experts at the patent office.

But academics may also be important, as an independent disinterested 
source of advice.

Most useful would be anything they can tell us about what's going on, 
and any particular sensitivities or areas where the government is 
looking for more information that they may have heard of about the process.

Prof Robert Clark at UCD surely fits the bill, as their leading IP 
lecturer, member of the Patent Office user council, and a particular 
expert in data protection, internet, copyright and database law.

Two more, who have written the book on the subject, are Denis Kelleher 
and Karen Murray (http;//www.ictlaw.com/; Information Technology Law in 
Ireland (Dublin: Butterworths), 1997; IT Law in the European Union 
(London: Sweet & Maxwell), 1999).

Karen Murray is the lecturer at the National College of Ireland that ENN 
spoke to.  Denis Kelleher wrote a policy review for Forfas in 2002 
called "Legislating for Competitive Advantage in e-Business and ICT".

I'm attaching pages 19-22 on patents.  Interestingly, although Kelleher 
quotes economic benefits from swpats from the year 2000 CEC study "The 
Economic Impact of Patentability of Computer Programs", he then seems 
almost agnostic as to what in fact should and should not be patentable.

for a rebuttal of the CEC study in Hartmut's usual no-prisoners style).

These three seem to be the leading academic lawyers in the field, at 
least in Dublin (I haven't really checked Cork or elsewhere).

At TCD the computer science department offers a course in IT law given 
by Proinnsias Ó Cillín, formerly of the land registry in Dublin. 
Kelleher and Murray is the #1 text for the course, and their website is 
his #1 link under Information Technology Law.

In the law department itself, the main full-time IP lecturers seem to be 
Paul Ralph Coughlan and Eoin O'Dell; there is also an LLM course on 
European Intellectual Property Law, taught by an external barrister 
Imelda Higgins.

Paul Ralph Coughlan, B.C.L.,  LL.M. (N.U.I.), Barrister-at-Law. Paul 
Coughlan is a graduate of the National University of Ireland, from which 
he holds the degrees of Bachelor of Civil Law and Master of Laws. He is 
Registrar of the Law School, Trinity College Dublin. He has lectured in 
Land Law and Intellectual Property at Trinity College Dublin since 1990. 
Previously he lectured in Law at University College Dublin and the 
University of Keele. A practising barrister, he has written extensively 
on land law, equity and intellectual property and is the Irish 
correspondent for the European Intellectual Property Review. His 
research interests cover land law, intellectual property law, equity.

Eoin O'Dell  B.C.L.(N.U.I.), B.C.L.(Oxon.), Barrister-at-Law. Eoin 
O'Dell lectures Contract, Restitution and Freedom of Expression, 
researches primarily in the fields of private and commercial law, and is 
the Editor of the Dublin University Law Journal.

Ms. Imelda Higgins B.C.L. (NUI), LL.M. (NUI), Diploma in European Law 
(Bruges), Barrister-at-Law lectures in European Intellectual Property 
Law on the LL.M. Programme.


It's possible Alexander Schuster might take an interest from the 
European law/consumer interest angle; but I assume that's mostly more 
about product liability.

Alexander William Edward Schuster, B.A., LL.B., M.Litt., 
Barrister-at-Law. Alex Schuster is a Senior Lecturer-in-Law at Trinity 
College Dublin.  A former Director of the Irish Centre for European Law 
and a practising barrister, he has written widely on EU Consumer 
Protection Law. Publications edited by him include Product Liability 
(1989), the New Product Liability Regime (1992) and Key Aspects of Irish 
Competition Law and Practice (1993). He is currently editing Company Law 
in Ireland and the EC.  He is a member of the European Consumer Law 
Group, a group of lawyers which vets EU legislative proposals in the 
field of consumer protection and the Irish correspondent for the 
Consumer Law Journal.

Over at UCD, Robert Clark is clearly the man; but I found the following 
lecturers giving IP courses this year over his sabbatical:

Intellectual Property Law (2 BCL, 3BBLS)
Ms Leesha O'Driscoll, BCL(NUIC), LLM(NUID), BL

Intellectual Property Law (LLM, Commercial Law)
Ms Maire Ni Shuilleabhain , BCL, LLM (NUI), BCL (Oxon), BL

Information Technology Law (LLM ,Commercial Law)
Mr Eamonn Hall, BA, BCL, PhD, Solicitor, Legal Advisor Eircom Plc, 
Visiting Fellow
Mr. Thomas Jeremiah McIntyre, BCL, LLM(Lond), BL, Member of New York Bar

European Intellectual Property Law (LLM, European Law)
Ms. I. Higgins


2. Economists / Business Studies

Possibly the people with the widest, most balanced view of both the 
pluses and the minuses of software patents for innovation and 
development across the whole economy; and able to give the most 
authoritative assessment of the likely impact in practice of different 
variants of the software patent legislation.

We need to absorb as much of what they can tell us as possible, so we 
can also speak about the economic aspects with authority.

*  Prof. William Kingston
School of Business Studies, TCD


Kingston is very knowledgeable and quite critical about how well the 
patents system generates innovation, at least as presently constituted. 
  He would certainly be familiar with all of the material in the FTC 
report (http://www.ffii.org.uk/ftc/ftc.html).

Thus for example in his paper "Meeting Nelson's concerns about 
Intellectual Property" (14 May 2001), he writes:

> The recognised comparative failure of European firms to commercialise inventive and RTD efforts is partly explained by this. No firm can exploit more than a single trajectory of incremental change properly. Proprietary rights can prevent firms which could exploit other trajectories from doing so, thus also depriving the originator of competitive pressure to move along the learning curve as fast as possible. Eventually, products from foreign firms which incorporate more incremental improvements, gain an advantage in the market.


It would be very interesting to have his analysis of the different 
likely effects of the swpat directive, both the council version and the 
parliament version, and anything there might be in between.

However, I think he is not necessarily against software patents.  He is 
a fan of small firms:

> These are productive of inventions to a degree that is quite
> disproportionate to their resources. 

and a strong believer in the value of patents to them:

> Smaller firms are prolific users of intellectual property because they lack other types of market power to protect the information they produce.

Instead the paper argues that the deficiencies of the patent system 
could be largely cured by imposing a compulsory licensing option for all 
patents at a multiple of their R&D costs.

He argues this would be especially beneficial in software:

> 8.5 Giving appropriate protection to software development

> If the proposal were to be put into effect, the beneficial effects of intensified competition would be felt immediately by the public in relation to computer programs. As a new way of generating information, these needed a new kind of protection. Forcing software instead into copyright has resulted in programs receiving absurdly inappropriate terms of protection which can be up to 120 years. Among other outcomes, this has made conflict between Competition authorities and Microsoft inevitable in the U.S. and elsewhere.

He has also written an influential EU study, "Enforcing Small Firms' 
Patent Rights" (2001)

Key findings include that

> The current patent system works poorly for SMEs. Especially in the US, large firms use the resources which they have available for litigation to intimidate SMEs. For SMEs, patenting is currently not cost-effective as a means of protecting intellectual property.

However again, he seems to believe that the system could be fixed, this 
time by instituting a "Patent Defence Union", a sort of government 
backed offensive and defensive insurance scheme for SMEs.

Most frequently seen with him on the bandwagon for this is Arlene 
McCarthy's favourite software patentee, John Mitchell of AllVoice.

Kingston's analysis of the effect of various possible scopes for 
software patentability would be very interesting to hear; but he is by 
no means necessarily a cheerleader for our side.

Somebody else who might be interesting is:

*  Dr. Colm O'Gorman
Department of Business Administration, Quinn School of Business, UCD.

Dr O'Gorman appears to have done extensive fieldwork research on the 
software industry in Ireland, so may be especially well informed to say 
how much real use software patents really are in the sector, or whether 
they are as little use as Laura Creighton says at

According to the department research page, Dr O'Gorman has particularly 

New Venture Process: Colm O’Gorman has investigated the process of new 
venture creation among software firms.

High Growth Ventures: Colm O’Gorman continues to study the dynamics of 
growth in high-tech ventures.

SMEs: Colm O’Gorman continues to examine key managerial issues in SMEs 
including success strategies, their use of mission statements and the 
factors influencing internationalisation.

He is also likely to be able to give very useful pointers to what other 
work has been done in this field, and by whom.


3.  Business incubators, technology transfer specialists, and successful 
academic entrepreneurs.

Quite an interesting overview of the process at

The advice can get depressing: protect everything, talk to no-one, never 
let anyone have your source code...

Real entrepreneurs may actually have the most unrealistic view of the 
usefulness of patents.  Almost a prerequisite of keeping their business 
going is they have to believe in every aspect of it 120%, including the 
value of their IP protection.  And if they still have a business, that 
probably means their IP protection hasn't (yet) been tested...

But it would be interesting to know even from these people how useful 
they think patents really are in the software arena, or whether 
copyright, closed-source and trade secrets are actually a lot more 
important -- that, and really focussing on the product itself, customer 
satisfaction, and quick market response.

One name I saw in that lecture programme was

*  Prof Barry Smyth – UCD Department of Computer Science & CTO Changing 
Worlds (company producing mobile data platforms and solutions for mobile 

It would be interesting to know whether he would feel threatened by the 
Parliament version of the directive, or liberated.

UCD also has
*  Margaret Kennedy, Commercialisation Specialist (ICT), UCD Nova.

who it might be interesting to cross-check with what Prof Smyth has to say.


4.  Free software users.

5.  Researchers specifically working on free software

No specific links.

Do people think it would be possible to build on existing awareness, and 
try to get departmental policy staements of concern ?

Probably that's enough for one night...

All best,


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