The return of software patents in Europe?

Last July, when the European Parliament killed the software patent directive, few people thought that it would remain dead forever. The sorts of 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:

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.

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