Last July, when the European Parliament killed the software patent
directive, few people thought that it would remain dead forever. The sorts
people who push for that sort of expansion of legal monopoly rights tend to
be tenacious; they do not give up easily. Still, the recent headlines
proclaiming the return of the software patent debate were a bit of a
surprise; one would have thought that the pro-patent camp would lie low for
a little bit longer.
In fact, what is on the agenda now is not really a return of the software
patent directive. It is, instead, the longstanding idea of a "community
patent," which would apply across the entire EU. The idea is not entirely
nonsensical; patenting an idea across the EU is currently a lengthy and
expensive affair. People and companies interested in obtaining patents
would really rather go through the process just once; the community patent
would make that possible. The text
of the proposal [PDF] is available for those who are interested.
An attentive reader will note that there
is no mention of software patents in the proposal.
Where the trouble comes in is with this clause here:
The European Patent Office will play a central role in the
administration of Community Patents and will alone be responsible
for examination of applications and the grant of Community Patents.
So, if somebody were to convince the EPO to start granting patents on
algorithms, community software patents would be a reality. The unfortunate
news here is that the EPO has been happily granting software patents for
some time. FFII has put together a list of some
of the worst EPO software patents; included therein are patents on
JPEG, MP3, tabbed dialog boxes, form processing in web servers, some remote
procedure call protocols, electronic shopping carts, and more. Such
patents have no Europe-wide significance now, but, if they were issued as
community patents, the situation would then be different. At that point,
the only hope would be a court battle with the objective of getting
software patents declared invalid. Not a fun process. Besides, it was in
the courts that software patents became enforceable in the U.S.
Before this situation could come about, however, the community patent
proposal would have to be adopted. That has not happened, so far, despite
years of trying. Still, if there is to be a renewed push to establish a
community patent, it would be much better for that patent to come with
clear rules about the patentability of software. The current consultation
period goes through the end of March; there will be a European Commission
hearing on the community patent on June 13, 2006. So there is not a
lot of time to push for changes.
to post comments)