A recent government-commissioned study conducted by the Fraunhofer Institute for Systems and Innovation Research and the Max Planck Institute for Foreign and Informational Patent, Copyright and Competition Law advised that Europe should avoid the U.S. model, which allows patents on software that does not have a technical effect. The German ministry voiced its support for the study last week, concluding a long and controversial consultation period on software patent law within the European Commission.
British legal experts think it likely that the EC will still consider the German ministry position despite the consultation period being over.
However, experts say that the opposition to broader software patents voiced by the German government, open-source advocates, software developers and others is likely to make little difference to the outcome of the EC's plans. Europe is moving towards broader software patents as a way of putting Europe on the same footing as the United States, which many businesses feel is necessary to enable them to compete.
"There is a real competitors' position problem here--if you allow U.S. patents in your own backyard, it makes it harder for European software companies," said John Salmon, partner at law firm Masons. "It isn't helpful to have different systems in two main territories."
Software in Britain and elsewhere in Europe is currently protected by copyright law, with patents only being applicable to software that has a technical effect. Under copyright law, software has generally does not infringe on other products so long as it does not copy actual code.
Patent law is much broader, allowing companies to patent the way software works. It also opens the door to unintentional patent violations, since it can be difficult and expensive to determine whether patents exist that cover the software a company is developing.
The introduction of broader software patent laws in Britain is likely to invoke opposition from smaller companies, who could not necessarily afford to comply with the patent system. "It is an expensive process, and large multinational companies will put a patent on everything that moves. Smaller companies, which may be more innovative, won't be able to afford to do this," said Salmon. A U.K. patent currently costs around $14,000 (£10,000), whereas a worldwide patent could be as much as $140,000.
Legal experts agree that software is a complicated product to patent. This is because it is difficult to guard against the unilateral infringement of patented designs, owing to the scale of the market. "The reason behind patent systems is to protect people's innovations, but software is so fast-moving, and evolves constantly based on new hardware in operating systems," said Salmon.