A decision on whether software inventions should be patented
in Europe is nearing, pending the outcome of the European Patent
Office (EPO) Enlarged Board of Appeal's consideration of the
issue,writes Nick Wallin, patent attorney at
Withers & Rogers.
The software patentability issue was referred to the Enlarged
Board in October last year by the EPO President, Alison Brimelow.
She has raised a number of specific questions about whether
software should be patentable, based on her belief that there is a
divergence of legal opinion on the issue. Ms Brimelow's referral is
in direct contradiction to the position of the previous EPO
President, Alain Pompidou, who had stated that there was no such
divergence.
It would have been better if she had done nothing however. A few
years ago, the software community around the world would have
welcomed a decision to refer the issue of software patentability to
the Enlarged Board, but today things have changed.
In less than a year, some significant cases and other
developments have moved the issue forward and there is now an
emerging international consensus on the issue. Any change could
rock the boat and in the worst case scenario, if the EPO decides
that software inventions in any form should not be patentable,
existing patents for software-based inventions could be rendered
invalid.
Firstly, the UK Court of Appeal's ruling in the Symbian case
last year helped to confirm the view that software inventions that
bring about technical improvements in a product are patentable. In
addition, the finding against the patentability of 'business
methods' by the US Court of Appeals for the Federal Circuit in the
Bilski case has also added to the growing international consensus
on the issue of software patentability.
Secondly, the software community has learned to live with
patents for software inventions. A good example is W3C, the company
that develops standards for the web. W3C's patent policy requires
all contributors to licence their patents royalty free. The trick,
however, is that should one contributor decide to sue another
contributor for patent infringement, then all the licences to that
first contributor are automatically revoked. Such 'defensive
suspension' clauses have helped to promote the use of patented
software, whilst still allowing companies choices in how to exploit
the technology they own.
Technology companies and those using patented software in their
product development will therefore be hoping that the Enlarged
Board decides that either there is no divergence in the law or that
the current legal position is confirmed. While the chance of any
other result is small, it could have serious consequences. In the
midst of a recession, the last thing that technology companies need
is further uncertainty or an ill-considered judgment that brings
into question the validity of existing patent portfolios, which may
have already formed the basis of investment decisions.
One thing is certain, the issue of software patentability will
soon be resolved and technology companies will be nervously hoping
that the Enlarged Board of Appeal's decision is passed quietly,
without rocking the boat.