UK defies US on software patents

In a move that could sway an impending European-wide decision, the UK government says software patent laws should not be extended to cover business processes

The British government has announced that it will oppose changes to European law that would expand software patenting to cover business methods.

Following public consultation on the controversial issue, entitled Should Patents Be Granted for Computer Software or Ways of Doing Business?, the e-minister Patricia Hewitt announced on Monday that the UK will not change its patent law. She said that business methods should remain unpatentable and called for "urgent" clarification by the European commission on its plans.

Current UK and European Union rules allow patents only on software that has a specific technical effect, such as compression algorithms. In the US, firms can patent software that facilitates business processes.

Critics of the proposed changes say that extending software patents, in line with US law, would be anti-competitive and disadvantage small and independent software developers. In the US, patents can be granted for more general business processes: online book retailer Amazon.com famously issued a law suit against arch rival Barnes and Noble for infringing on its patent for its 1-Click shopping process, which lets repeat shoppers purchase items without having to re-enter personal information. Last week the US court of Appeals for the Federal Circuit dismissed Amazon's request for an injunction that would have stopped Barnes and Noble using a similar process on its own site.

Other companies that have filed controversial patents in the US include Priceline.com, which holds a patent for its "name your own price" reverse auction procedure. The US patent office last year agreed to review its process for awarding such patents.

In the UK, the patent office says that European law on what types of software processes can be patented is dangerously unclear. A spokesman said he believes this may have disadvantaged the software industry in Europe.

The Europe Commission is currently debating the issue. The European Patent Office voted in January against plans to change the European Patent Convention to allow patenting of business methods, but the Commission is known to be split over the issue. The topic is undergoing public consultation and the European Commission has said it will issue a directive in March.

The UK government will recommend that the rest of Europe adopts its position. "Patent law is harmonised under the European Patent Convention, and we shall be recommending the conclusions we have reached to our European partners," said consumer affairs minister Dr Kim Howells. "In particular we shall press for clarification of European patent law to put an end to uncertainty about what software can and cannot be patented. The consultation showed that at present there is confusion, and that [this confusion] is damaging."

The announcement was due to be made over a week ago, according to government sources, but was delayed by concern among senior civil servants that going against any policy adopted by the US would be commercially unwise.

The government's opposition to extending software patenting to business methods will be welcomed by the open source community, which shares concern that it could hamper some developers. The open source community shares software source code and encourages free and independent software development.

Alan Cox, one of the key developers of the Linux kernel, the core of the open source Linux operating system, weclomed the government's decision. "I am pleasantly suprised," he says in an email. "I had expected business patents to be thrown out but the conclusions on software are pretty sane too. The government has accepted that software patentability is a bad model and that it harms SME's. I'm also very pleased there is a desire to clarify the curent law."

Linux, a Unix-like operating system created by a group of disparate programmers, is regarded as one of the prime examples of open source success and Linux has been adopted by many major traditional technology firms including Intel and IBM.

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