European software patents inch closer

A committee vote on changes to the European approach to software patents brings the proposal one step closer to law. The result could have a dramatic impact on software innovation, critics argue
Written by Matthew Broersma, Contributor
Controversial changes to the European Union's software patent regime have moved a step closer to legislation with a vote by the European Parliament's Committee on Legal Affairs and the Internal Market (Juri) on Tuesday. Juri voted to approve a series of amendments to a proposed directive on the patentability of computer-implemented inventions, which aims to eliminate ambiguity in the way software-related patents are handled, and differences in the way EU member states interpret individual patents. The European Commission, the EU's executive arm, introduced the proposal with the argument that companies with patentable inventions currently do not seek software-related patents because the system is ambiguous and inconsistent across Europe. However, the proposal has been bitterly criticised by many software developers and scientists, who argue that the directive would expose smaller developers to a barrage of frivolous lawsuits from large patent-holding rivals -- a situation that already exists in the US. The proposal had already passed through two other committees, who suggested many of the amendments considered on Tuesday. The Juri vote means it can pass through to the full parliament this autumn. If ultimately approved as an EU directive, all EU member states would need to implement the legislation at a national level, although more changes could be made before final approval. Arlene McCarthy, the MEP for the North-West of England, who shepherded the proposal through parliament, argues that the directive is necessary to help European businesses compete in the global marketplace. In a piece published last week in The Guardian, McCarthy argued that the system should not drift towards a US model, but also said that software companies should be offered a similar level of patent protection here as in the US or Japan. "If we fail to offer European industry the possibility of patent protection, we will hand over our inventiveness and creativity to (overseas) big businesses, who can cherry-pick ideas and patent them," she wrote. "It is time some of the 'computer rights campaigners' got real." Critics argued that the Juri vote tossed out the suggested amendments from the Committee on Culture, Youth, Education, the Media and Sport (Cult) and the Committee on Industry, External Trade, Research and Energy (Itre) that would have placed clear limits upon what types of software inventions could be patented. "McCarthy and her followers rejected all amendment proposals that limit patentability while supporting all those which go even beyond the European Commission's proposal," said the Foundation for a Free Information Infrastructure (FFII), a Germany-based pressure group, in a statement. The FFII published statements condemning the vote by technologists from several major companies and organisations, including Hakon Wium Lie, chief technology officer of Opera, Dr. Bernhard Runge, senior developer at SAP, Bernhard Kaindl of SuSE Linux and Richard Clark, chief executive of Elysium and chief editor for the JPEG standardisation committee. When can software be patented?
According to EU law, software programs as such cannot be patented, but inventions that involve software can be patented if they represent an invention in a technological field. Some factions had sought to clearly limit what kinds of software-related inventions could be patented; Cult, for example, proposed an amendment to the proposal stating that "data processing is not a field of technology", removing it from consideration for patenting, while defining technology as "controlling forces of nature to achieve a physical effect". At the opposite extreme, it would be possible to interpret the fact that a program is running on a computer as meeting the definition of a technical invention, which would essentially mean that any software could be patented, according to the arguments of many software developers. Those rallying against software patents, including a group of high-ranking scientists around the EU who published a recent petition, and the 148,000 people who have so far signed a similar petition organised by the EuroLinux Alliance, fear that an increasing number of software-related patents will increase the sway of large patent-holding companies over small software developers. The petitioning scientists argued that software patents "would be not only useless, but also extremely harmful, because they would cast in concrete the powerful oligopolies that naturally emerge in information-based industries." Such a system already exists in the US, where the patent office has a liberal patent-granting policy, and to a large extent leaves the court system to determine whether patents are enforceable, according to legal experts. Since smaller companies usually do not have the funds to fight against patent claims in court, they tend to pay royalties instead, experts said. Recent patent controversies in the US have centred on Web site cookies, online ads and Web site navigation. Richard Stallman in a speech last year said the logic behind the US software patents regime would have forced Beethoven to pay Mozart for the right to create a new symphony. Richard Clark, chief editor for the JPEG standardisation committee, which recently faced a patent claim which would have imposed royalty fees on almost every digital imaging device, said the proposal as it stands would worsen the patent situation for standards makers. "The members of the JPEG committee have spent years fighting off frivolous patent claims that have partially succeded in destroying our standardisation efforts. With the new regulation proposed by JURI, we are in for even more trouble," he said in a statement.
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