UK Patent Office under fire over software report

The UK Patent Office has published an article explaining the software patents directive, but it has already been fiercely criticised by many anti-patent campaigners
Written by Ingrid Marson, Contributor
The UK Patent Office (UKPO) has been criticised by anti-patent campaigners on Monday for an article it published last week on the software patent directive.

The article, entitled Patents & Software: Fact and Fiction explains the details of the software patents directive, a potential change to European law which some critics say could allow the widespread patenting of software in Europe.

The UKPO document states that the EU Council has agreed a text which is now due to be debated by the European Parliament. It claims that the directive is needed to stop the UK from moving towards a US-style liberal patenting regime and to clarify the law by only allowing software to be patented if it makes a 'technical contribution'.

The document goes on to explain why it believes that copyright is not enough and clarifies the "fact and fiction" about patent law, including a denial that the software patent directive would be harmful to SMEs.

But some anti-patent campaigners said they were concerned that the document was confusing and will actually misinform the public about the issues regarding software patents.

Alex Hudson, vice-chair of Association for Free Software, which promotes free and open-source software, told ZDNet UK he was unconvinced by the document.

"This leaflet is a very one-sided view on the directive," said Hudson."There are lots of things it doesn't mention and gets wrong."

Rufus Pollock, the UK spokesman for the Foundation for a Free Information Infrastructure (FFII), says the FFII has a similar view.

"FFII-UK deplores the continuing misinformation presented in the recent Fact and Fiction document distributed by the UKPO," said Pollock. "The document continues to peddle old fictions, presents hardly a shred of evidence and continues to promote the patentability of software which threatens innovation both in the UK and across Europe."

Pollock claimed that the UKPO is not an objective observer as it has an interest in widening the scope of patent law.

"We are also concerned that a supposedly neutral, government-funded, administrative agency is taking such a strongly partisan role in this debate, particularly given the inherent conflict of interest in the Patent Offices' role that encompasses providing impartial advice while simultaneously having a significant stake in the resulting outcomes," said Pollock.

Florian Mueller, the founder of an anti-patent Web site, said that he did not feel that the agency had presented a balanced case to the public. "I think it’s a disgrace that a public institution would do public misinformation propaganda," said Mueller.

A spokesman for UKPO denied that the document is unbalanced or inaccurate.

"The document is not inaccurate," said the spokesman. "The Patent Office is adjacent to the debate in the software industry and this document is the aggregated view of the opinions presented to us."

One of the claims that has angered both Hudson and Mueller is that the UKPO article states that the change to the directive will limit the degree to which software can be patented.

"It [the directive] is not about making all software patentable," states the UKPO. "Inventions involving the use of computers will be patentable only if they make a 'technical contribution'."

However, Pollock said that the technical contribution clause does not limit the patentability of software, as can be shown by some of the patents which have already been granted by the European Patent Office.

"The requirement for a 'technical contribution', which is supposed to prevent pure software and business method patents, is toothless," said Pollock. "Technical contribution can consist of something like reducing the number of necessary mouse clicks to buy something."

Hudson claimed that almost any well-written software could be defined as making a technical contribution.

"Whether software has a technical contribution is a function of how well you write software," said Hudson. "It is very, very easy to find technical contribution in software."

Hudson also said that the lack of clarity on technical contribution does not just affect the software industry at it also opens up the possibility of patenting of business methods.

"The directive is opening a backdoor to business methods," said Hudson. "If you can find technical contribution, you can patent business methods also. The business community will be worried about this as traditionally have never been able to patent business methods."

The UKPO feels that the directive will make the UK less likely to move towards widespread patenting. "We need a directive to clarify the situation and prevent a drift towards the more liberal patenting regime of the United States," stated the UKPO.

But Mueller said that the patent directive will open the way for widespread patenting, which will make the UK drift closer, rather than further away, from the US system.

"What they [the UKPO] want is to cast the high degree of Americanization that they have already achieved in stone through an EU directive, and to expand further thereafter," claimed Mueller in a forum posting on his Web site.

In the 'Fact & Fiction' section of its document, the UKPO says that the patent directive is not harmful to SMEs, "The patent can be very helpful to SMEs because it allows them to hold their own against big business."

This view is strongly contested by a number of UK SMEs which have expressed their views on patents on a Web site set up by the FFII. One posting, from the managing director of a small software company, states that the patent directive could make it hard for SMEs to develop software.

"I believe that the proposed European legislation on software patents will be a disaster. It will destroy the UK software industry except perhaps for the very largest companies," said the posting. "[The directive] will make it impossible to create software without a team of lawyers watching your back and substantial legal fighting fund to fend off the larger neighbours."

Mueller said that small companies are unlikely to sue large companies, such as Microsoft or IBM, for breaching patents as these companies can afford to drag out a case for years, or could countersue using their huge bank of patents.

Even the UKPO's initial assertion about the EU Council's proposal has evoked controversy. "The EU council has agreed a text which reflects the current position in the UK and other member states," states the UKPO. That text will now be debated by the European Parliament."

But Hudson and Mueller point out that this directive has not been formally approved. The EU council voted on 18 May in favour of changes to the EU software patents directive, but this political agreement is not legally binding until the proposal is formally adopted. This is expected to happen when the EU Council meets at the end of November, at which point it should then be considered again by the Parliament.

Indeed, since the initial agreement, a change in the voting weights of EU members means that the EU Council members which supported these changes to the directive no longer have a majority vote. This has prompted some campaigners to call for a recount.

In addition, the four main political parties in Germany have agreed that changes need to be made to the directive, in contradiction to what the German representatives at the EU council meeting initially agreed. This may put pressure on the German representatives on the EU Council to change their initial opinion.

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