Patent injustice for small software companies

Summary:The software patent system as it stands favours large enterprises, which has serious implications for future innovation and development in the IT industry

Patents have become a hot topic over the last year, due to the controversy surrounding a proposed European directive that will change the legal framework around software patents.

The proponents of the directive, which include the UK Patent Office (UKPO), claim the directive is needed to clarify the law and will not allow the patenting of software per se. But opponents of the directive, which include many software developers, small software companies and a number of MEPs, are concerned the directive will open the doors to the widespread patenting of software.

Even if the directive is amended or rejected by the European Parliament in its second reading in July, technology patents are still an issue for small to medium-sized technology companies, which may wish to file patents or may be at risk of violating the patents of other companies.

The patent office and the government in the UK are keen for small and medium enterprises to use trademarks, copyright or patents to protect their intellectual property. The UKPO claims that companies can gain various advantage through patents, including protecting their research and marketing effort in developing a product and an improved ability to obtain venture capital funding.

But the UKPO admits that the patent system can be less accessible to SMEs and is working on possible solutions to this issue. "Getting a patent is expensive. Once you've got it, you need to enforce it. We have been made aware of the difficulties that SMEs may face in defending patents," says Lawrence Smith-Higgins, the head of awareness, information and media at the UKPO.

The problems that SMEs face with both filing and enforcing patents means that large companies tend to file disproportionately more patents than small companies. For example, a study earlier this month by Colorado College in the US, found that only 20 percent of patents issued by the European Patent Office are held by SMEs, despite the fact that SMEs are responsible for half of Europe's turnover.

The costs of filing a patent
Although a "fair proportion" of people file patents without the help of patent attorneys, Smith-Higgins says that legal help is generally advisable. "It's not the type of thing you can do yourself," he says. "A patent attorney will be earning money for drafting claims. It's no good having a granted patent if someone can get around the claims."

A call to the UKPO enquiry unit revealed that it dispenses similar advice to customers regarding legal-help. "You can do it yourself. But your success rate is going to be a lot higher if you use a patent attorney — they work on patent specifications on a daily basis," said the customer services assistant.

Topics: Developer

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