Critics say EU move threatens smaller suppliers and in-house
work
Plans to introduce European-wide laws on computer software patents
have unleashed a storm of controversy as rival political groups
argue about the impact they could have on the cost and availability
of commercial and open source software.
European member states, members of the European Parliament,
commercial software producers and the open source community are
fighting over the wording of a proposed directive that could have
serious consequences for every company that uses or develops
software.
If the critics are right, software patents could create legal
hurdles for IT departments wanting to develop their own software.
In the worst-case scenario, the patents could force smaller
suppliers and open source specialists out of business, restricting
competition and the choice of software available to users.
The proposed EU Directive on the Patentability of
Computer-Implemented Inventions aims to clarify existing European
laws on patenting software.
The current legislation is governed by European Patent Convention,
an international treaty which has so far been implemented in
slightly different ways across each state. It states that software
cannot be patented if it does no more than operate in a computer.
To be patented, software has to have a "technical
application".
In practice, this means that a company that develops software to
control a car can patent it, as controlling a car is a technical
application. However, a company that develops software to automate
a human resources system would not be granted a patent. This is
because HR systems are regarded as a business process rather than a
technical application.
The details of the proposed EU Directive have yet to be finalised,
leaving its supporters and critics to argue over its merits.
Software suppliers regard the directive as a vital tool to ensure
the competitiveness of European companies. IT suppliers' group
Intellect is pressing for it to be adopted as a matter of
urgency.
"Without it, the UK's individual inventors, small and medium-sized
companies and large multi- nationals will be unable to protect
their inventions, undermining the incentives to undertake research
and development, and creating a climate adverse to technology
transfer," said Intellect's director general John Higgins.
Microsoft chairman Bill Gates put the case rather more strongly
this month, describing opponents of the legislation as "modern-day
sort of communists" who wanted to damage industrial
innovation.
Sensible compromise
For its supporters, the directive represents a sensible compromise
between no software patenting and the US regime, which allows a
wide range of software to be patented. In the US, suppliers have
obtained patents covering everything from shopping baskets on
internet sites to task completion bars used to show how long
software is taking to install.
But some MEPs, smaller software suppliers and the open source
community have said that unless such software patenting is
specifically excluded from the directive, the law could act as a
back-door route to US-style patenting in Europe.
Florian Mueller, who runs protest website nosoftwarepatents.com -
backed by a coalition of IT professionals and other opponents of
proposals to change patent law - said this could end the work of
the open source community, with large suppliers taking out patents
on basic IT functions and enforcing them aggressively through the
courts.
As small software houses and the open source community lack the
financial resources to fight battles over intellectual property in
the courts, the directive could leave IT departments with a smaller
pool of software suppliers to choose from and restrict the
availability of open source alternatives.
Threat to Linux
"Some companies have sent their sales people out telling people not
to use Linux because they claim they have a bunch of patents on it.
That is one of the reasons why the open source community is
concerned about it," said Clare Wardle, deputy head of the legal
department at the Post Office.
IT departments could run into difficulties if they develop their
own software for in-house use, said Peter Knight, intellectual
property specialist at law firm Norton Rose.
"As far as copyright is concerned, it is fairly straightforward for
an IT department to make sure they are not infringing someone
else's code. But to make sure you are not infringing a patent, you
have to do a patent search. I cannot imagine many IT departments
wanting to do that," he said.
However, the Government and the Patent Office are adamant that the
directive will do little more than clarify existing European law.
It is still too early to say how the directive will work in
practice. Progress on the legislation ground to a halt in December,
following objections from Poland.
In the meantime, Norton Rose suggested that IT directors follow the
progress of the directive carefully and to begin preparing the
groundwork now. This means seeking indemnities from suppliers that
their software does not breach other supplier's patents or
copyrights.
For and against the patents
directive
For
- Provides European companies with protection for their ideas and
encourages innovation
- Creates a level playing-field for patents across all European
countries
- Directive will clarify existing patent laws, rather than
introducing major changes.
Against
- Small suppliers will not have enough financial muscle to obtain
and enforce patents, reducing choice for IT departments
- Could restrict the availability and functions of open source
software
- IT departments may have to conduct patent searches to make sure
they are not infringing rights.