Patent celebrations begin, cautiously

Alan Cox, one of the leading lights of the UK Linux scene, was among those celebrating on Thursday after the European Parliament demanded a total rethink of the software patent directive.

On Wednesday the Parliament's Legal Affairs Committee (JURI) voted 19 to one, with one abstention, in favour of a motion asking the European Commission to rewrite the Computer Implemented Inventions Directive.

Alan Cox, sometime maintainer of the Linux kernel and well-known open source advocate, said on Thursday that he was pleased with the news and thanked Poland for its role in delaying the EU Council from ratifying the proposed directive.

"I'm delighted that through JURI the Parliament has made this decision, and enormously grateful to Poland for its stand for democracy and the interests of the hundreds of thousands of small business people this proposal threatened," said Cox.

Debian developer Wookey was also pleased that the EP has stopped the EU Council from rushing the law through.

"This is a very encouraging sign," said Wookey. "The European Parliament is taking account of the huge public concern about this directive and has shown that the Council's attempt to force through an uncompromising pro-software-patent directive is not the way to reach a sensible consensus in this vitally important area of law."

One concern raised by campaigners was that the directive could stifle small software businesses, who do not have the same legal or financial resources as large firms. Chandran Honour, the managing director of software company Altrunet, said that JURI's actions are good news for small software companies such as his.

"I think the patent system works in favour of larger corporates or venture-funded start-ups, due to the high cost of acquiring patents," said Honour. "The restart is good news for small innovative companies looking to penetrate new markets without the threat of patent challenges from their corporate cousins."

Gary Barnett, a research director at analyst firm Ovum, said he is not against software patents, but believes the EU must formulate a law that includes tests to see how inventive an idea actually is. He said that many software patents that have been passed, such as one-click shopping, would not pass such a test.

"Great news, absolutely fantastic news on the patent front," said Barnett. "I'm pleasantly surprised -- I had the impression that politicians from the UK and so on were trying to push this through no matter what."

"I'm not anti-patent per se. But if we're going to do it, we should do it properly rather than rushing it through. I don't think that software patents are necessarily bad, but there needs to be a high standard of test for obviousness and innovation. Obviousness is really important. Take one-click shopping -- hundreds of developers over the world could have thought of this. It's such an obvious thing."

But there is a dark cloud already looming over the celebrations of anti-patent campaigners, as the EC has not yet decided whether to agree to the EP's request for a restart. Linux developer Cox said he is worried that the EC may ignore the EP's request.

"Unfortunately, however, it seems the Commission will not treat this as a chance to drop the entire issue but will continue pursuing software patents for the sole benefit of a tiny number of large, mostly American, companies," said Cox. "The battle is far from over."

Mike Calder, chief executive of Web design company Guillemot Design, expressed similar concerns. "The call for a restart on the directive is welcome, but I remain dubious that the EC will kill this pernicious snake," said Calder. "Politicians do not have a good track record of protecting the individual and small independent sector against powerful and well-heeled special interests."

The Foundation for a Free Information Infrastructure (FFII), which has been one of the primary organisations campaigning against the directive, said it hopes the EC will heed JURI's call.

"We hope the Commission will act on this all-party recommendation from the Parliament for a new start. It's a better way forward than trying to flog the dead horse of the previous text through even more Agriculture and Fisheries meetings," said James Heald, a UK spokesman for the FFII.

The EP has said that it is keeping its options open and will see what happens with the EU Council. It is not known yet how the Council will respond as it has repeatedly tried to ratify the directive. An EU Council spokeswoman said on Thursday that it has not yet decided anything and could legally argue that the Parliament has not got the right to demand a restart. The Council is due to meet tomorrow and is likely to discuss then what to do next, she said.

Some organisations will be happy if the Council does fight the EP's decision. A UK Patent Office (UKPO) spokesman said that it was "looking forward" to the Council ratifying the directive and is worried that the process could drag on for a long time. The UKPO disagrees that the patent directive will allow the widespread patenting of software and that it will harm small businesses. Instead it claims that the law must be clarified to make it easier for companies to contest inventions.

"We believe that the directive is necessary for clarifying the law, maintaining the status quo and making sure we have the necessary framework to protect all technological innovations, regardless or not of whether they are implemented through software," said the Patent Office spokesman.

Ingrid Marson writes for ZDNet UK.