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Software patents row heads for stalemate

Trevor Cook

The controversy surrounding the European Union's proposal for a directive on "computer implemented inventions" continued as the plan came before the European parliament last week.

The proposal aims to harmonise throughout Europe how courts and patent offices should interpret an exception to the European Patent Convention of 1973, which excludes from patentability "computer programs as such".

The original proposal was extensively amended by the old European parliament. The new parliament has criticised an amended proposal from the Council of Ministers, which adopts few of the old parliament's amendments. In fact, the council was under pressure from some member states to drop it.

The proposal would not abolish the exclusion of software from patenting; instead it would attempt to establish what it means in practice when computer technology is implemented in products and services.

Some, including the European Patent Office, interpret the exception narrowly and grant patents which seem to many to be little more than software patents.

Others, including the UK Patent Office, interpret the same exception more broadly, along with related exceptions for business methods, presentation of information and mental acts.

Supporters of the commission's proposal look for it to provide certainty about the status of inventions enabled in software. To them these are now at the heart of all digital technology and the proposal would reach sectors including not only IT but also telecoms, consumer electronics, household appliances, transport and medical instruments.

Such supporters fear the proposal as amended by parliament, at the behest of its opponents, would place a broad interpretation of the exception. They believe this would undermine their scope to patent innovations which no one would have questioned were they implemented in hardware.

The concern of opponents of the proposed directive is that it would make it easier to get software patents, in the way that is now possible in the US.

They maintain that the proposal as originally formulated would place a narrow interpretation on the exception which would open the floodgates to pure software patents. They fear a situation in which anything becomes patentable and there can no longer be any legal security.

The opponents are not comforted by the assurance that the requirement for a "technical contribution" in European patent law sets a high threshold of patentability which excludes pure software. They note, for example, that a European Patent Office Appeal Board has observed that, "The meaning of the term 'technical' or 'technical character' is not particularly clear."

Both sides cite economic research supporting their respective positions, but such studies are equivocal even in other fields of technology where patents are far less controversial.

Opponents argue that software patents interfere with software copyright and tend to lead to the expropriation of software creators, rather than to a protection of their property.

Supporters counter that patents can provide protection for the functionality of technically innovative software in a way that copyright cannot.

Neither side is assured of victory - but the longer the controversy goes on, the greater the likelihood the proposal will be abandoned. That will leave no one happy about the continued uncertainty.

Trevor Cook is a partner and intellectual property specialist at law firm Bird & Bird, and a BCS representative on the British Copyright Council

Two sites reflecting opposing views on the software patents issue

www.patents4innovation.org/index.php/eng/patents_cii

www.swpat.ffii.org


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