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March 07, 2005
Patenting Europe
This morning, European ministers endorsed a proposed bill to allow software patenting. The draft bill still needs the backing of the European parliament before it becomes law and many members of the parliament have already voiced their opposition. The move to wave through the bill has been called to be "in violation of the procedural rules" by activist groups because the countries opposing the bill (such as Poland, Denmark and Portugal) were not heard.
Press release here. Excerpts
The key features of the common position are as follows:
Member States will be obliged to ensure in their national law that computerimplemented inventions are considered to belong to the field of technology. In order to be patentable, a computer-implemented invention must be new, susceptible to industrial application and must involve an inventive step. In order to involve an inventive step, a computer-implemented invention must make a technical contribution to the state of the art. If the contribution to the state of the art relates solely to unpatentable matter, there can be no patentable invention irrespective of how the matter is presented in claims.
In accordance with the European Patent Convention, a computer program as such cannot constitute a patentable invention. Inventions involving computer programs, whether expressed as source code, as object code or in any other form, which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network
or other programmable apparatus in which it is run will not be patentable.
The Council has introduced a new provision in order to clarify that in certain circumstances and under strict conditions a patent can cover a claim to a computer program, be it on its own or on a carrier. The Council considers that this would align the Directive on standard current practice both of the European Patent Office and in the Member States.
The Directive should be without prejudice to the application of Articles 81 and 82 of the Treaty, in particular where a dominant supplier refuses to allow the use of a patented technique which is needed for the sole purpose of ensuring conversion of the conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them.
The Commission will monitor the impact of computer-implemented inventions on innovation and competition, both within Europe and internationally, on Community businesses, especially small and medium-sized enterprises, on the open-source community and on electronic commerce.
In Europe, there are a lot of arguments that this type of patenting will deeply harm the adoption of Open Source by commercial and public institutions. The US already has these types of patents and the rise of Open Source doesn't seem to have slowed there - or am I wrong in thinking that? Not that I am for patenting software at all - but I would like to see some more concrete evidence that this is the case. I guess there is then always a potential patent sword hanging over the software you use from an Open Source project - but does that stop US companies from using it?
Posted by Matthew at March 7, 2005 02:50 PM
Comments
I've wondered the same thing about the US. They're mad on applying for patents, but you don't hear that much about legal cases involving them; I think because what happens is that the huge companies use patents as a negotiation weapon, and the small ones get told to just pay up by their lawyers.
What's odd is why you don't see individuals being sued for patent abuse. It might be that companies see that this is a no-win situation, an individual can't pay the funds and it has the potential for a bit of bad PR; it might be because it's not deemed intersting news; or it might be because they're waiting to have better international cover, though I can't see why.
Posted by: Henri Yandell at March 7, 2005 04:11 PM
I'd say that the patents in the US have been in a "cold war" stage, forming alliances (see the recent Sun-Microsoft settlement and the joint venture to exploit patents that other companies joined).
They were waiting not to interfere with the European Directive approval, to start the Hot War just after a European Directive is signed.
But I think, at least under European laws, that patents cover only industrial production, and never DIY construction for you own use. If this is true, individuals (or even companies) compiling from source their own software programs for internal use would be free from any patent risk.
Posted by: Santiago Gala at March 7, 2005 05:00 PM