Article on software patent situation

I was asked to write an article to appear in EU Reporter this week on the current situation with software patents. Basically the situation is not good, but we still have a chance. For some background on why I am so worried about Software Patents, take a look at this blog entry from a few months ago. Here is the text of the EU Reporter article:

Last Monday the European Parliament’s Legal Affairs committee voted against all amendments to the draft Directive on “Computer Implemented Inventions” that would have prevented the introduction of software patents in Europe.

Patents are a powerful form of intellectual property, and while in certain fields they can promote innovation, they are not appropriate to all fields of endeavour. Patents are primarily used where a large investment is required to take an idea to an actual innovation and where copyright is not an effective protective measure. Examples of such fields would include pharmaceuticals and aerospace. Patents are typically not used in fields where ideas can be realised with relatively little capital investment and where copyright is an effective protective measure; such fields include literature and software.

This distinction was recognised when in 1972 art. 52 of the European Patent Convention (EPC) stipulated that programs for computers shall not be regarded as inventions and shall therefore not be subject to pat-entability .In recent years the European Patent Office (EPO), through a dubious interpretation of the EPC, has drifted towards granting over 30,000 patents on software , nearly three-quarters of which are owned by non-European companies. These patents remain largely “inert” as any attempt by the patent holder to initiate litigation over these patents would likely result in their invalidation.

For this reason Europe has been spared the negative impact of patents on computer programs that is currently being experienced in the United States, where the Federal Trade Commission has raised concerns over the impact of software patents and where even Microsoft, a strong advocate for software patents in the EU, has called for patent reform. Proponents of the current text of the Directive argue that the directive only codifies the “status quo”. This assertion is disingenuous. It may be the case that the Directive seeks to codify current European Patent Office practice in granting software patents, but in doing do it will dramatically change which patents can be enforced in practice.

In this debate, the scope of patentability hinges on the definition of the term “technical”, as the current Directive text excludes software from patentability unless it is of a “technical nature”. This allows its proponents to claim that “pure software” will not be patentable. However, a sufficient technical contribution would be that the software is “loaded or executed in a programmable computer, programmable computer network, or other programmable apparatus” — in other words, any form of computer software designed for use on a computer is patentable.

In the first reading the European Parliament added a meaningful definition of the term “technical” to the Directive text for the purpose of clarification, but this was removed by the Council of Ministers. It is therefore critical that the Directive be clarified to include a concrete definition for this term.The effect of the current wording of the directive being passed unamended, will be to open the floodgates to litigation of over 30,000 existing, albeit questionable, European software patents. This will be a disaster for the European software industry, particularly small to medium sided software companies, unless key amend-ments can be reintroduced when the entire European Parliament votes on the Directive next month.


If you share my concerns, please sign up to Economic Majority, get informed, and try to arrange a meeting with your MEP, or at least a phone call.

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