[Patents] Legalizing patents on software as such probably means legalizing patents on service on service

[Jean-Paul Smets jp@smets.com]

Hi,

This is a short article. I am interested in your reactions.

JPS

--

Legalizing patents on software as such means legalizing patents on
service

In Europe, patents can not be granted for computer programmes as such as
it is stated in article 52.2c of the Munchen convention which defines
patent law in Europe. This means that a programme as such is not
considered as an invention. However, patents can be granted to
inventions that use software (52.3) : for example an oil exploration
process where various physical sensors and various software are combined
to determine where the oil is. This explains why some people say that
there are many software patents in Europe, although there are no patents
on software as such.

However, little by little, under the pressure of big US patent owners,
patents have been granted to inventions which contain software with less
and less industrial application. In a recent case at the European Patent
Office (T 0935/97 - 3.5.1), IBM is claiming a patent for an invention
which merely is a programme as such with little if no industrial
application. Big patent owners, patent experts and lawyers are now
claiming that, since the EPO is granting patents on inventions which
merely are programmes as such, it would be more consistent to revise
article 52.2c of the Munchen convention and legalize patents on computer
programmes as such.

Such a move, if it were approved, would have two main consequences.

First, it would allow patent owners to sue people or companies who
publish or sell original and innovative software, in particular on the
Internet. Currently, only users can be sued in Europe for infringing a
software patent since only the use of a programming technique for a
given application can be considered as an invention, not the programme
itself. Editors may "only" be sued for unfair competition if they do not
care enough about the precise terms of their licences.

Second, by patenting innovative software as such used in electronic
commerce appplications, it will be possible to sue competitors who are
copying or imitating electronic business methods. Of course, no patents
will be granted on business methods as such (as 52.2c states). But,
since electronic commerce always requires shrink-wrapped or customized
software, lawyers will likely suggest to patent customized electronic
commerce software as such, thus creating a monopoly on the electronic
implementation of a given business method. This is exactly the same
approach as the one used nowadays to patent software by patenting
inventions containing software. If software as such can be considered as
an invention, there is no reason not to consider software containing
innovative business methods as inventions.

One can imagine the next steps. After 10 years, under heavy pressures
from big patent owners and consulting groups, the EPO will grant patents
on inventions which merely are business methods as such. The EPO may
then recommend to revise again article 52.2c of the Munchen convention
and legalize patents on business methods as such, services as such, etc.
leading to the end of freedom of commerce, after the end of freedom of
writing software.

Jean-Paul Smets.

Reference
http://www.european-patent-office.org/dg3/biblio/t970935eu1.htm

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