Patent Office wants debate on software directive

Patent Office wants debate on software directive

Summary: Software firms and developers have the chance to influence UK Patent Office policy and change its understanding of 'technical contributions'

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TOPICS: Government UK
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The UK Patent Office (UKPO) announced on Friday that it will hold a series of public workshops across the UK to discuss the proposed software patent directive.

The workshops will examine the definition of a 'technical contribution' when deciding whether a particular software patent should be granted. This is a key part of the Computer Implemented Inventions Directive (CIID), which says that software can be patented if it can be shown to make a technical contribution.

The future of this directive is uncertain, after the European Parliament asked on Wednesday for a full rewrite. The UK has been very supportive of the directive, unlike fellow EU members such as Poland. These public workshops could influence the UK's future patent policy, according to a UKPO spokesman.

"It depends on the outcome of the workshops -- if, for example, they show that there is some consensus it will become extremely persuasive to make changes [to the policy]," said the spokesman. "But, it is too early to make promises that there will be an entirely new direction -- we need to wait and see what the workshops produce."

Peter Hayward, a divisional director at the UKPO, said the Patent Office accepts that the software industry is divided on the CIID. UKPO hopes that this meeting will help it to come up with a definition that keeps both sides happy.

"Opposing views on the directive have been expressed by different sectors of the software industry, and not just along the traditional division between the large and small firms," said Hayward. "We will be very interested to see if a definition which is clear to software developers can be found which continues to enable the patent system to protect technical inventions."

Science and Innovation minister Lord Sainsbury agreed that more discussion was needed around the issue of technical contribution, at the end of a meeting held at the Department of Trade and Industry in December 2004. Unlike the meeting in December, to which some anti-patent campaigners were not invited, any software developer or patent professional can attend these workshops, according to the UKPO.

The issue of technical contribution is a tricky one. The current definition within the CIID has been criticised as vague, and opponents of the directive say that it will allow companies to patent the majority of software. Last October, various German politicians proposed a change to the definition so that software can only be patented if it results in a physical change and cannot be patented if it is merely a business process, algorithm or data processing activity.

To attend the workshops you must register on the UKPO site by 18 February. Workshops will be held during March and April in Coventry, Bolton, Bristol, Belfast, Glasgow, London and Cardiff.

Topic: Government UK

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8 comments
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  • This is a bad starting point for a workshop. The question is not whether a technical contribution is made, but if software should be patentable altogether.
    If software becomes patentable, the step to patents on music, literature and speech is not too big.
    anonymous
  • The UKPO has always claimed (in it's pre-DTI meeting brochure for example), that pure software and business methods are not patentable in Europe and they have also always claimed to be the most vigilant of patent-on-idea-thinly-disguised-as-invention excluders themselves. But the first claim is belied by the contents of the EPO database - as is well known - and the second claim is belied by the UKPO's own record and it's database contains some of the very worst examples of US style patent madness (GB2243467, GB2312973, GB2364408...).

    The UKPO are known to have been among the foremost proponents of the proposed Directive; a piece of deliberately obfuscatory legislation ("legal casuistry", according to the EESC analysis) which has been designed precisely in order to codify the current legally dubious EPO practice by (among other things) helpfully defining "technical" to mean "[belonging to] a field of technology". That practice, developed through case law over the years and about which the lawyer Michael Guntersdorfer wrote in his 2003 analysis:

    "International efforts have been largely successful in creating a level playing field between the U.S. and Europe. While some differences in the application process and the granted rights remain, patentability is nearly uniform. Even modern technologies such as software are subject to widely unified treatment. Only when it comes to the very cutting-edge of the latest, controversial decisions can differences be discovered; most notable is the holding in State Street as opposed to that in Pension Benefits. However, the trend of limiting State Street's broad holding has started in the U.S., while Europe can be expected to move towards State Street at the same time -- probably leading to little practical difference soon".

    is well known to the patent attorney community to be a practice that allows just about anything that is allowed in the US - provided the claims are worded correctly. (As if the contents of the EPO database were not evidence enough):

    http://www.mofo.com/news/general.cfm?MCatID=&concentrationID=&ID=141&Type=5#_ftnref29

    (There are many more examples of patent attorney websites with advice on how to patent pure software and business methods in Europe, but that is the most entertaining.)

    In other words, we have already blundered, drifted and been pushed all the way to the US "patent everything under the Sun" position and it has been the UKPO and friends doing most of the pushing. All that is standing between European SMEs, inhouse software developers, webshop owners, scientists, musician/programmers etc. etc. and the predatory attentions of the likes of Acacia Research or the greed of de facto monopolists is the uncertainty of patent validity that still lingers and that the Directive is designed to remove.

    Now the UKPO may well have workshops and it may even subsequently tighten up it's own practice - but it simply /will not make the slightest bit of a difference/, as they are well aware. If the Directive is adopted, the EPO will carry on with their self-appointed task of duplicating the USPTO and JPO databases, patentees will have their patents examined by the EPO rather than the UKPO and the UK Courts will UPHOLD them:

    "The clarifications are in the directive, chiefly the requirement of "technical contribution". Trying to define the meaning of this expression in any greater detail introduces the risk of moving away from the current legal position. If you want to maintain the current legal position, the clearest and safest way is to use the same words as the Courts - because it is the Courts that have determined what the current legal position is through interpreting it in successive cases. If you put new wording in the directive, the next time a case come to court, the lawyers will point out that the law has been changed and they will argue that it must mean something different. It would be a very strong and compelling argument." Steve Probert,
    anonymous
  • Start by explaining why pre-law "software patents" got granted in the first place.
    anonymous
  • Is this the way to start over ?

    Defining "technical contribution" is just another means of trying to salvage as much as possible from a miserably failed and flawed law.

    This sounds like the decision to patent software has been uphelp and they just want to clarify a few terms. That is NOT the same as starting a new discussion about whether software should be patentable in the first place.

    These guys seem to consider us to be complete idiots to not see through this. There should be a way to remove them for incompetence and unwillingness to cooperate.
    anonymous
  • This is the Death Knell for Open Source Software, Linux, et al.
    It will mean the 'idiot tax' of continuing liscense fees on British Businesses will increase - our economy will suffer.
    It will mean that with legislative denial of competition, bloated (American) software companies will keep us paying taxes to them for operating our machines and interfacing with our information.
    It will mean no software startup will stand a chance against the legions of corporate patent lawyers.
    It means no innovation, software will stagnate and remain 'buggy' because it can.
    If this law had been inplace 10 or 15 years ago the Internet as we know it would not exist as the Billions of Apache Servers running on Linux Platforms would each cost about
    anonymous
  • In 1991 Bill Gates said: "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today."
    Patents are valid for 20 years.

    please read : nosoftwarepatents.com
    anonymous
  • The goverment still doesn't know when to quit!

    I say this "secret war" must be brought up a notch so the public knows the govements plans for total corruption.
    anonymous
  • I have recently read the transcript of the meeting on Patents at the DTI in December. It made me so angry that I nearly had a heart attack. The minister, Lord Sainsbury, said that the prurpose of the meeting was to allay the fears of those who opposed the government's proposals. Later in the meeting he complained that none of the government's supporters had attended the meeting since every questioner was against. The Patent Office officials appeared to have no understanding of software development and Lord Sainsbury was so poorly briefed that he was unable to give a coherent answer to any of the questions. He claimed that Open Source software would not be affected by the proposed changes since it had not been up to now - apparently unaware of the SCO case, for example. Judging from the transcript his only qualifications for being the Minister of Science is that he is a rich businessman who has donated more than
    anonymous