Don't rock the boat on software patents

A decision on whether software inventions should be patented in Europe is nearing, pending the outcome of the European Patent Office (EPO) Enlarged Board...

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.

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