The always eloquent James Boyle continues his call for evidence-based, rather than faith-based, intellectual property policy in a Financial Times column on the proposed Software Patents Directive in Europe:

In the absence of further evidence, sound bites prevail. Proponents of the directive are left claiming that "stronger rights will mean more innovation." Opponents quote Bill Gates' 1991 words about the expansion of software patentability in the US: "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today."

There is, however, a very impressive empirical literature of the expansion of patentability on the US software industry that some European policy makers seem to have missed.

For example, Professor James Bessen and Robert Hunt of the Federal Reserve Bank found that the increase in the level of software patenting in the US was associated with a significant decline in investment in research and development by software companies. As more and more patents were granted, companies spent less on R&D. Correlation does not prove causation, as the authors appropriately caution. Nevertheless their conclusions are clear about the assumption that granting stronger property rights in software will stimulate innovation. "Our evidence suggests this assumption may be incorrect in the case of software patents. If, instead, the legal changes create patent thickets, the result might well be less innovation."

Previous Copyfight coverage of Professor Boyle's quest for IP sanity: James Boyle on Copyright Stupidity, James Boyle: Public Information Wants to Be Free, and Judging IP Policy on Its Merits.