EU unveils tougher software patent proposal
The proposal, which would standardize a variety of software patent rules across the 15-member bloc, requires that software contain new ideas to qualify for patent protection.
Also, patents would apply only when software is loaded in a machine or operating system, not when it merely sits on a shelf.
Commissioner Frits Bolkestein, whose Internal Markets group oversaw the new proposal, said the proposal differs from the U.S. approach, which permits patents for software independent of machines and does not necessarily require fresh innovation.
"We will take American complaints on the chin," he predicted.
Bolkestein's presentation opens the debate on the proposal, which is certain to face amendment in order to win the needed approval from the European Parliament and its member states.
He rejected the U.S. position, which he said includes the patenting of business methods.
"There should be an inventive step which is not obvious to people who are familiar with the field," Bolkestein said at a news conference. "It really must be a novelty."
But he also discarded the view that software should be openly available with little or no protection.
Two extremes
"The Commission has had to steer between those two extremes," Bolkestein said.
The Commission's position offers no sanctuary from the law to would-be software pirates. Officials were quick to say that software transmitted over the Internet or published would continue to be protected under copyright law.
Patents provide an absolute 20-year monopoly, which the owner can exploit for commercial advantage. Copyright provides a lesser form of protection, which runs far longer.
The Commission proposal is certain to face changes as it undergoes scrutiny by the European Parliament.
"What is important to realize is that the Commission's proposal is only the start of the debate," said Thomas Tindemans, the European political affairs expert for the law firm White & Case in Brussels.
"It's going to be amended for sure, but which way the amendments will go is difficult to predict," he added.
Tindemans and a colleague said there is certain to be heavy lobbying by the U.S. software industry, which will want the higher level of protection offered in the United States.
But they noted that patents such as that granted to Amazon.com for its controversial "one-click" Internet shopping system, which critics say is a business method and not an innovation, have raised concerns in the U.S. and Europe.
"The question is, 'How sympathetic will the Parliament be to the U.S. industry on that particular issue?,"' said Mark Powell of White & Case.
The Parliament and EU member states must agree on the final wording before it can take effect.
An official for the Business Software Association's Brussels office expressed dismay at the proposal.
"It departs from what we had hoped to see," said Francisco Mingorance, director of European Public Policy for the U.S.-based association, to which Microsoft Corp is a heavy contributor. He said that the proposal would increase the costs to software firms seeking to protect intellectual property.
Microsoft, which makes the operating system software used on nearly all personal computers and dominates the market for PC word processors, had no immediate comment on the proposal.