The UK does not have a viable software industry because it is too restrictive about what code can be patented, according to a lobbying group for small technology businesses.
Ian Hargreaves responded to calls from business lobbyists for tougher patent enforcement at the Westminster Legal Forum on Tuesday. Photo credit: David Meyer
John Mitchell, the chairman of the SME Innovation Alliance, told a Westminster Legal Forum audience on Tuesday that "we don't have a software industry because the UK Intellectual Property Office is out of line with the rest of Europe".
The UK will only grant software patents if they solve a particular technical problem, while it denies those that have a general-purpose use, such as a word-processing application. By comparison, the European Patent Office (EPO) is a little more relaxed, in that it allows patents for computer programs themselves.
If you don't have a patent system to protect your software industry, you're not going to have a software industry. How much more evidence do you need?– John Mitchell, SME Innovation Alliance
"We need to recognise that software is a material — you can make inventions from that material," Mitchell said at the event, held to discuss the recent Hargreaves report into intellectual property law. "It's like wood, it's like paper, so why have some artificial limitation?"
Mitchell complained that "hardly anyone" submitted evidence to Ian Hargreaves before he published the report. The report called for the UK to resist allowing software patents in order to avoid "thickets" of patents building up around commonly-used technology.
"[Hargreaves] seems not to have noticed that quite a lot of SMEs who did respond said there's no UK system in place for patent enforcement. In the G8, this is the only country that has no penalties in place for patent infringement," Mitchell said.
"If you don't have a patent system to protect your software industry, you're not going to have a software industry. How much more evidence do you need?" he asked.
In fact, Hargreaves's Digital Opportunity (PDF) report went as far as to suggest that the UK government should lean on the EPO to get it to tighten up its criteria for software patentability.
At the event in Westminster, Hargreaves told ZDNet UK that evidence given to his review showed "no great sway of opinion saying we must have software patents".
"There is not sufficient evidence that instituting software patents would bring benefits to innovation and the economy, but there is evidence on both sides," Hargreaves said. He noted that some large US companies are keen to move away from that country's pro software-patent stance "because technology moves so fast, so they're not an effective way of protecting your intellectual property".
"Most companies believe secrecy and moving fast are better routes than spending years to get patents," he added.
According to intellectual property lawyer Trevor Cook, of the law firm Bird & Bird, the Intellectual Property Office (IPO) is in "a rather unfortunate situation" as it is "stuck with some old [UK] case law which is based on some older EPO case law, and has not been able to move along with the EPO approach". He said the EPO approach was now more in line with attitudes in the US, Korea and Japan.
I worry that if we are too much out of step with the rest of the world, it cannot be good for our industry– Trevor Cook, IP lawyer
"I worry that if we are too much out of step with the rest of the world, it cannot be good for our industry, especially if you think that a lot of the inventions we do produce are embodied in software," Cook said.
However, Cook also noted that software patents are sometimes troublesome because of the occasional difficulty in proving 'prior art' — the legal term used to describe things that have been done before. "The problem with the software industry is a lot of prior art consists of old computer manuals that people have thrown away, and never made it onto the internet," he said.
The government is due to give its response to the Hargreaves review before the summer recess, which begins in mid-July.
Get the latest technology news and analysis, blogs and reviews delivered directly to your inbox with ZDNet UK's newsletters.