The recent announcement by the European Parliament's Legal
Affairs Committee of a blueprint for the harmonisation of software
patents in the EU was controversial, despite the fact it does not
substantially alter the current law on software
patentability.
The blueprint will give us some certainty about the future of
software patents and an opportunity to set the record straight in
this much-debated area.
There are already more than 20,000 software patents in Europe, many
filed by US and Japanese companies. Generally, European companies
have been slower to appreciate the importance of intellectual
property rights. A recent Marks & Clerk survey revealed that
only one third of UK technology companies have an executive at
board level with responsibility for intellectual property rights.
While no firm would supply goods without systematically collecting
payment, many are less diligent when it comes to intellectual
property. Consequently, competitors are getting away with using
their software inventions free of charge.
Intellectual property needs to be addressed at management level and
throughout software development. Once patents have been obtained,
their use should be reviewed on a regular basis. New opportunities
for comercialising patents may arise, while some patents can lose
their value to the company after a few years.
In most cases patent rights for foreign markets can be sold or
licensed. E-commerce developments offer a rich vein for commercial
patents. If developers come up with a new or improved way to
perform a business process using software, it may be possible to
get patent protection.
Although business methods in themselves remain unpatentable in the
EU, the technical implementation of a business method by software
may be protected in many cases.
Patents are often the only effective safeguard for developers' new
ideas and the clarification of patent protection in the EU will go
some way to ending the confusion in the industry.
John Collins is a partner at law firm Marks
& Clerk