EU headed for limited software patent law

The European Parliament is unlikely to demand many changes to a proposed law on software patents that already has the backing of...

The European Parliament is unlikely to demand many changes to a proposed law on software patents that already has the backing of national European governments, parliamentary spokesman Nikolaos Tzorkias said.

A committee charged with leading the debate on the directive within the European Parliament agreed on a version of the text that makes only minor changes to the original text written by the European Commission.

"The committee gave strong backing to the proposed EU-wide rules for the patentability of computer-implemented inventions," Tzorkias said.

In addition to winning 20 of the 29 votes cast in the legal affairs committee, Tzorkias said the position agreed by the committee has backing from the largest political party in the European Parliament, the conservative European Peoples' Party, as well as support of the third-largest voting block, the Liberal party.

The Socialists, the second largest group in the parliament, are divided with some in the party siding with the Green party in opposing the directive, and others supporting the committee's position, Tzorkias said.

"The vote at committee level clears the way for a straightforward vote at the plenary session of the parliament. The result seems absolutely clear now," he added.

EU lawmakers involved with the draft law appear to be converging on a position that ignores views from both extremes of the debate over software patents, and endorses the approach to patentability currently applied by the European Patent Office.

Free and open-source software supporters argue that patents should not be awarded to software under any circumstances, while supporters of greater protection argue that Europe should be in line with the US and Japan, which both have fairly lax rules permitting software developers to register patents for business methods.

The European Parliament is likely to support a law that permits software patents but limits their application to inventions that have a technical effect outside of just a computer program. A program could only be patented if it runs in conjunction with some sort of device such as an intelligent household appliance or a mobile phone.

"I am relieved they kept the status quo," said Thaddeus Burns, a patent lawyer in the Brussels office of law firm Akin Gump Strauss Hauer & Feld.

Burns believes Europe should fall into line with Japan and the US by allowing business methods to be patented, but feared that EU lawmakers would move in the opposite direction under pressure from software patent opponents.

He believes that without patents, software developers have no chance of protecting their inventions, but he warned that the European approach, which requires proof of an invention’s technical effect, would make it more expensive for European developers to protect their intellectual property than in the US.

"In the US you just have to prove that your invention is novel, it isn’t obvious and that it is useful. The technical effects requirement will make it more time consuming and therefore more expensive to register inventions in Europe," Burns said.

Open source and free software supporters argue that they do not want or need patent protection. Patents, they say, create a legal minefield that only the biggest software firms can navigate successfully, and they do not offer any real protection because patent disputes are nearly always won by the party with the biggest legal budget.

The proposed directive steers a course midway between these two extreme views, and has won the support of organisations such as the Business Software Alliance (BSA), which represents suppliers including Microsoft and Apple Computer.

"We support the move towards a harmonised European approach to software patents," said Francisco Mingorance, director of public policy, Europe for the BSA, adding that the alliance does not want a US-style system.

"We agree that technical effects should be a condition of patentability," he said.

Paul Meller writes for IDG News Service

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