Software patent war ignites again

The patent debate may be taken out of the hands of elected politicians if a new measure is approved, according to three European Parliament groups
Written by Matthew Broersma, Contributor

Three political groups in the European Parliament (EP) have warned that software patents are re-emerging into EU politics with an EP vote scheduled for next month.

Last year the EP derailed a proposed directive that, critics argued, would have legitimised software patents in Europe. On Thursday the PES, Greens/EFA and GUE/NGL parliamentary groups warned that a measure facing a parliamentary vote on 11 or 12 October could take up where the failed software patent directive left off.

Internal market commissioner Charlie McCreevy is to deliver a speech next week promoting the measure, called the European Patent Litigation Agreement (EPLA).

In rebuttal, the three groups have filed a motion calling for "balance between the interests of patent holders and the broader public interest in innovation and competitive markets", a spokesman for the groups said on Thursday. The motion argues that the EPLA weakens EU democracy, compromises judicial independence, increases litigation costs and may "[expose] SMEs (small and medium-sized enterprises) to greater risks".

The EPP-ED and ALDE parliamentary groups support the EPLA.

Patents on software are formally disallowed under the European patent system, but are routinely granted by the European patent office, according to critics. They are currently difficult to enforce in many EU member states, something critics say would be changed by the failed software patent directive, and now by the EPLA.

Software patents are generally considered to add to the legal costs of large enterprises, as well as creating a hostile legal environment for smaller software businesses and open source projects. However, companies which already have large portfolios of software patents are under pressure to increase the value of these assets in Europe.

Proponents of the failed software patent directive and the EPLA argue the measures will not open the door to software patent litigation and will allow smaller companies to more easily benefit from the patent system.

The EPLA is "anchronistic", and is even disliked by some large companies such as Nokia and GlaxoSmithKline, according to Austrian Green MEP Eva Lichtenberger.

Others said the measure would effectively take the software patent issue out of the reach of the EU's democratic controls. "We are all for improvements to the European patent system, but we must continue the search for solutions within the framework of the EU," said Maria Berger, the PES' spokeswoman for legal affairs, and former French prime minister Michel Rocard, in a statement.

The text of the three groups' joint motion can be found here (PDF).

The Foundation for a Free Information Infrastructure also opposes the EPLA, and on Thursday criticised McCreevy for failing to deliver clear answers about the measure to MEPs.

"We have had enough of hidden agenda politics, it's time for the Commissioner to deliver some facts," said FFII president Pieter Hintjens in a statement provided to ZDNet UK. "The EPLA means higher costs for small businesses, and increased litigation risks. More US-style litigation is not the solution. We just need a better patent office."

In the US, the granting of software patents has continued to accelerate, despite calls for reforms by some large companies. On Tuesday the US Patents and Trademarks Office said it granted 893 new patents, pushing the total for this year to 30,232, a new record.

At the current rate of registration, more than 40,000 software patents will be issued this year in the US, the USPTO said.

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