Europe tackles software patent chaos

The European Commission is considering changing the law to unify the position regarding software patents and is now seeking the views of interested parties during a consultation period ending on December 15. Currently there is a deep ambiguity between different European countries about the status of software patents.

In the UK for example, software cannot be patented. While in other European countries patent practice allows for software to be patented under specific circumstances such as being of 'technical character'.

In contrast, the US has a more liberal patent system which allows sometimes trivial 'innovations' to be patented often under the label of a business method. This requires no demonstration of technical characteristics.

But the topic is so serious that other bodies directly concerned with this issue aren't waiting for the Commission. The European Patent Office (EPO) based in Munich is organising an inter-governmental conference towards the end of November. The purpose of the meeting is to revise the European Patent Convention, which is the legal basis for granting European patents. As the Convention now stands, it states that computer programs should not be patented.

According to spokesman Rainer Osterwalder, the EPO would like this stipulation to be removed to bring it into line with Trade-Related Intellectual Property Rights (Trips) set out by the World Trade Organisation. It seems highly likely that the conference will vote to change the rules without waiting for the results of the European Commission's consultation period, providing there is a majority decision.

Dissenting voices
But opinion among the major players in the industry is divided as to whether software patents should be granted or not. Sides line up over whether granting patents will stimulate innovation or stifle it. The European open source community is opposed to the idea, believing that patents are counter-productive.

"There is a very poor ratio of how long it takes to invent something and how many people will invent the same thing later on," said Hartmut Pilch, of open source group Eurolinux.

"Most of these software innovations take place very quickly and you don't need to do lots of verification. It's just a matter of pure reason or calculus, so it's not what the patent system has been about and it's proven to have an adverse economic effect."

Paul Golding, partner at solicitor Nabarro Nathanson - a Computing Services and Software Association (CSSA) member which acts for software suppliers - does not think software patents are a good idea either.

He said the issue has, however, generated severe debate between proponents and opponents of software patenting. "There is certainly one school of thought that says granting a software patent will only benefit large companies at the expense of small companies," said Golding.

"But I've also heard a very impassioned defence of the patent system from someone who said it is very helpful for small companies, because for a modest outlay if you do manage to obtain a patent you get an absolute monopoly, and what better way could you spend £10,000? You can't achieve that kind of commercial power any other way," he added.

Golding's personal view is against software patenting. He argues that the current copyright law is sufficiently strict to provide adequate protection.

"It has not prevented people from creating new programs and developing new products, and I think if you start to allow patents for software there's a significant danger that creativity would be stifled, because people would have a tremendous fear that they might inadvertently infringe someone else's patent," he said.

Lawyers clean up
As a result companies could increase their costs, because they would have to take out insurance against infringement and could get involved in expensive litigation, said Golding.

He also pointed out that the UK litigation system as it stands means that a company which loses an infringement case has to pay its own legal costs and those of the other party - which could financially cripple some small and medium-sized businesses. This system should also be reformed too, he said.

Opponents of software patents also think that the speed of change in technology would make patents a nonsense. They are likely to be outdated within a few years. Yet current patents are generally allowed to run for 20 years. It can also take up to four years to be granted a patent in the UK. In technological terms that's an eternity.

Generally it is large companies that have benefited from patents, particularly US organisations. IBM probably holds more patents than any other IT company. Hartmut Pilch, of Eurolinux, said he welcomed the fact that, at a recent meeting to discuss this subject, IBM representatives "clearly argued against software patents". They said the US patent system is out of control, but added that the European Commission needs to do something to tighten up the situation here.

IBM's official comment from Tony Occleshaw, communications manager for IBM Europe, the Middle East and Africa, was different. "The protection of intellectual property is critical to the long-term health of the software industry," he said. "IBM patents its own software intellectual property and regards any steps taken by legislators to help companies protect their assets as welcome."

Economic effects
Eurolinux would like the law to stay as it is, but would like to see some clarity in the term 'technical character', explicitly defining it in law. "We want to leave the law as it is but have an European Commission directive that is more clear within the law, and defines what technical character is," said Pilch.

Jeff Watson, policy adviser at the UK Patent Office, said it is hard to prove whether or not granting patents improves a country's economy. "Our concern is that people are fully aware of these issues so that we can make a properly informed decision," he said.

"This is not a new issue but the internet had changed the complexion, and it has been difficult to get industry fully engaged in this," said Watson.

The EPO's Osterwalder meanwhile said that he is loathe to speculate on the outcome of the conference. And even whether it would wait for the European Commission's consultation paper before implementing any rule changes. But even if it does decide to make changes, they will not come into force for at least four or five years.

You can send your views to Jeff Watson at the Intellectual Policy Directorate, The Patent Office, Concept House, Cardiff Road, Newport NP10 8QQ, or email him at jwatson@patent.gov.uk

Like this story? Spread the news by clicking below:

 del.icio.us     Digg this     reddit!