SOFTWARE PATENTS: THE BATTLE CONTINUES

The Register reports that the European Information and Communication Technology Association (EICTA) has stepped up its campaign in support of patents for computer-implemented inventions by launching a new site, Patents4Innovation.org. The aim of this site is to persuade people that the current form of the proposed Directive on computer implemented inventions will boost innovation. Failure to adopt the legislation will, EICTA maintains, jeopardise the work and livelihood of hundreds of thousands of researchers and inventors employed in Europe's high-tech industries (EICTA’s members include many prominent IT hardware firms).

The Polish government has however reached almost exactly the opposite conclusion and will oppose the directive when the Council meets to discuss it on 25 November. The government has concluded that, in its current form, the directive will be of no benefit to the European software industry and could even have an adverse effect on the industry in Poland. Says Mark MacGann, director general of EICTA:

"This Directive is extremely important for the future of innovation in Europe as it concerns two-thirds of all inventions in the European high-tech industry."

He argues that the issue has been made emotional "as a result of the sensationalized and inaccurate treatment by opponents to the legislation" and describes suggestions that the Directive paves the way for patents on software as "fallacious", adding that the technology industry rejects such patents.

A statement on the new EICTA site reads:

“Patents for software have never existed and should never exist in Europe because software is already protected by copyright law. Patents will only be granted for inventions of a technical nature. These include inventions in medical equipment, cars, mobile phones, aircraft, Televisions, voice- and image-recognition devices, digital rights management solutions, and Countless other examples”.

However, the terms of the directive are infamously broad, and EICTA's statements are misleading. priceWaterhouseCoopers recognises that the directive may have wide-ranging and unforeseen consequences. Three areas of the directive cause most of the problems:

1. To be considered patentable, a computer-implemented invention must involve a so-called inventive step, that is, it must make a technical contribution. However, despite a tiny last-minute change to placate the Germans the directive does not define the term "technical", leaving the lawyers a lot of room to play in.

2. Patent holders are not required to make an all-comers general licence available to parties who want to write software that interoperates with the patented process.

3. The draft allows for program claims, so that even supplying patented code, as opposed to running it on a computer, will be an infringement of the patent. This will make it impossible to post sections of code on websites, common practice in developer communities.

Anti-patenting organisations, such as the FFII (Foundation for a Free Information Infrastructure) and FSFE (Free Software Foundation, Europe), warn that because the directive is so loose in its terminology, it is open to abuse. The FFII in particular cautions that although it can be read as only allowing patents for software that supports a physical process, it could be used to support patenting of software business methods. The directive is currently awaiting its much delayed second reading.

The IPKat urges caution. Even if the present state of software patent law in Europe may be confused, uncertain and lacking in clearly expressed principle, it can hardly be said that all sectors of the software industry have done pretty well since the European Patent Office opened in June 1978. What’s more, computer literacy during that period has become so widespread as to be almost the norm throughout the territories of the European Patent Organisation. The balances between (i) software and hardware industries and (ii) between users and suppliers are pretty impressive. But current IP protection through patent and copyright law is already arguably too strong, which is why competition and antitrust authorities on both sides of the Atlantic have to work so hard to redress the balance -- and rarely appear to succeed.

Here's some hardware to help protect your software here, here and here