ZDNet UK: Software patents inch closer

[James Heald <j.heald@ucl.ac.uk>]

http://news.zdnet.co.uk/story/0,,t269-s2136233,00.html?rtag=zdnetukhompage

(The online version has some hyperlinks)

European software patents inch closer
15:04 Wednesday 18th June 2003
Matthew Broersma 

A committee vote on changes to the European approach to software patents
brings the proposal one step closer to law. The result could have a
dramatic impact on software innovation, critics argue

Controversial changes to the European Union's software patent regime
have moved a step closer to legislation with a vote by the European
Parliament's Committee on Legal Affairs and the Internal Market (Juri)
on Tuesday.

Juri voted to approve a series of amendments to a proposed directive on
the patentability of computer-implemented inventions, which aims to
eliminate ambiguity in the way software-related patents are handled, and
differences in the way EU member states interpret individual patents.

The European Commission, the EU's executive arm, introduced the proposal
with the argument that companies with patentable inventions currently do
not seek software-related patents because the system is ambiguous and
inconsistent across Europe. However, the proposal has been bitterly
criticised by many software developers and scientists, who argue that
the directive would expose smaller developers to a barrage of frivolous
lawsuits from large patent-holding rivals -- a situation that already
exists in the US.

The proposal had already passed through two other committees, who
suggested many of the amendments considered on Tuesday. The Juri vote
means it can pass through to the full parliament this autumn. If
ultimately approved as an EU directive, all EU member states would need
to implement the legislation at a national level, although more changes
could be made before final approval.

Arlene McCarthy, the MEP for the North-West of England, who shepherded
the proposal through parliament, argues that the directive is necessary
to help European businesses compete in the global marketplace. In a
piece published last week in The Guardian, McCarthy argued that the
system should not drift towards a US model, but also said that software
companies should be offered a similar level of patent protection here as
in the US or Japan.

"If we fail to offer European industry the possibility of patent
protection, we will hand over our inventiveness and creativity to
(overseas) big businesses, who can cherry-pick ideas and patent them,"
she wrote. "It is time some of the 'computer rights campaigners' got
real."

Critics argued that the Juri vote tossed out the suggested amendments
from the Committee on Culture, Youth, Education, the Media and Sport
(Cult) and the Committee on Industry, External Trade, Research and
Energy (Itre) that would have placed clear limits upon what types of
software inventions could be patented.

"McCarthy and her followers rejected all amendment proposals that limit
patentability while supporting all those which go even beyond the
European Commission's proposal," said the Foundation for a Free
Information Infrastructure (FFII), a Germany-based pressure group, in a
statement.

The FFII published statements condemning the vote by technologists from
several major companies and organisations, including Hakon Wium Lie,
chief technology officer of Opera, Dr. Bernhard Runge, senior developer
at SAP, Bernhard Kaindl of SuSE Linux and Richard Clark, chief executive
of Elysium and chief editor for the JPEG standardisation committee.

When can software be patented?
According to EU law, software programs as such cannot be patented, but
inventions that involve software can be patented if they represent an
invention in a technological field. Some factions had sought to clearly
limit what kinds of software-related inventions could be patented; Cult,
for example, proposed an amendment to the proposal stating that "data
processing is not a field of technology", removing it from consideration
for patenting, while defining technology as "controlling forces of
nature to achieve a physical effect".

At the opposite extreme, it would be possible to interpret the fact that
a program is running on a computer as meeting the definition of a
technical invention, which would essentially mean that any software
could be patented, according to the arguments of many software
developers.

Those rallying against software patents, including a group of
high-ranking scientists around the EU who published a recent petition,
and the 148,000 people who have so far signed a similar petition
organised by the EuroLinux Alliance, fear that an increasing number of
software-related patents will increase the sway of large patent-holding
companies over small software developers.

The petitioning scientists argued that software patents "would be not
only useless, but also extremely harmful, because they would cast in
concrete the powerful oligopolies that naturally emerge in
information-based industries."

Such a system already exists in the US, where the patent office has a
liberal patent-granting policy, and to a large extent leaves the court
system to determine whether patents are enforceable, according to legal
experts. Since smaller companies usually do not have the funds to fight
against patent claims in court, they tend to pay royalties instead,
experts said.

Recent patent controversies in the US have centred on Web site cookies,
online ads and Web site navigation.

Richard Stallman in a speech last year said the logic behind the US
software patents regime would have forced Beethoven to pay Mozart for
the right to create a new symphony.

Richard Clark, chief editor for the JPEG standardisation committee,
which recently faced a patent claim which would have imposed royalty
fees on almost every digital imaging device, said the proposal as it
stands would worsen the patent situation for standards makers. "The
members of the JPEG committee have spent years fighting off frivolous
patent claims that have partially succeded in destroying our
standardisation efforts. With the new regulation proposed by JURI, we
are in for even more trouble," he said in a statement.