A group of software developers and patent lawyers agreed on Thursday at a UK Patent Office (UKPO) workshop that the definition of technical contribution in the proposed European software patent directive is wrong.
Lord Sainsbury, the minister for science and innovation, and the UK Patent Office agreed to hold the workshops after a public meeting at the end of last year, where software companies and developers expressed their concern about the directive, officially known as the directive on the patentability of computer-implemented inventions.
Although the results from the 13 workshops held across the UK have yet to be collated, the conclusion from one of the six workshops held in London was clear — the current criteria for deciding whether a patent should be granted is so vague that almost all software patents are likely to be granted. The UKPO has repeatedly denied that the directive will allow the widespread patenting of software, for example in a report published last year it claimed that the directive is "not about making all software patentable" and "excludes inventions directed at solving a business problem".
The directive, which is due to pass to the European Parliament for a second reading this month, will allow patents for software that can demonstrate a 'technical contribution' and which satisfy the tests of obviousness that other patent applications have to pass. Software that does not demonstrate a technical contribution will not be patentable, say the backers of the directive, which includes the UKPO, who have helped steer the legislation through.
The attendees of the workshop discussed in groups a number of fictional patent claims and whether various definitions of technical contribution would allow these patents to be passed. The vast majority of attendees agreed that the directive's definition of technical contribution allowed all the claims to be patented, while an alternative definition proposed by the UK branch of campaign group the Foundation for a Free Information Infrastructure (FFII) prevented all claims from being patented.
After the discussion the attendees were asked which of the patent claims they believe should have been passed. The majority agreed three of the five patents should not have been passed, with the attendees split on whether one of the other patents should be passed or not. Only one patent claim received the support of the majority.
All groups of attendees agreed that the directive definition was ineffective.
"[The directive definition] seemed to make anything patentable," said one attendee. "Case study 10 [an operating system application protocol interface] shouldn't be patentable, but was only patentable under A [the directive definition]."
"Virtually anything is patentable. It confuses technical contribution with what's new — anything new automatically becomes a technical contribution," said another attendee.
The FFII UK definition was praised as the best of the four definitions, although a few potential problems were pointed out.
"We found [the FFII definition] was the only definition which was any good," said one group spokesperson.
But one attendee said that the second paragraph of the FFII definition was confusing as the first and second sentences appeared to contradict each other, in their view. Jeremy Philpott, a marketing executive from the UKPO, said that four of the other workshops in London had also come to this conclusion.
"The second clause of [the FFII definition] is negative — it says what's excluded, while the first clause is positive. This doesn't make for good definition," said Philpott.
Philpott did not comment on the universal criticism of the directive's definition of technical contribution.
Another UKPO spokesman conceded though that the FFII definition was generally well respected. "Quite a lot of people like [the FFII definition] — it seems to be easier to apply," said the spokesman.
Other attendees disagreed that the FFII definition was confusing. "I appreciate there's an issue with having a positive and negative, but a negative is clearly more specific than the positive — it says it doesn't include the processing, handling, representation and presentation of data. The way that it goes into more detail is its strength, I think" said one attendee.
Another said that some work needs to be done on this part of the definition. "It's extremely powerful because of the exclusions, but apparently rules out anything that operates automatically, which seems to be a fault of it."
At the end of the workgroup the UKPO conducted a straw poll of whether the attendees felt that software should be patentable and whether they were "lawyers, techies or both techies and lawyers". Only 7 of the 26 attendees said that it should be patentable, of which the majority classed themselves as "techies and lawyers".
The full results from all 13 workshops will be passed on to Lord Sainsbury and will be published on the UKPO Web site "soon", according to a UKPO spokesman.
Software patent directive definition of technical contribution
FFII definition of technical contribution
A technical contribution means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether these are accompanied by non-technical features.
"Technical contribution" means a contribution made by a claimed invention, considered as a whole, to the state of the art in a field of technology. "Technical" means belonging to a field of technology.