A patently divisive solution

After five laborious years of studies, green papers and consultations, the European Commission (EC) has finally proposed a directive covering software patenting. Officials say it paves the way for a more consistent approach to software patenting across member states. Legal experts are divided – according to whom they represent – on whether the proposal creates a tougher or easier patenting environment.


Common practices

Under existing rules, software programmes cannot be patented in the European Union (EU), although copyright protection is available. Yet on the basis of case law and its own ‘clarification’ of the legal situation, the European Patent Office (EPO) – which isindependent of the EU – has granted well over 30,000 software patents.

Under EPO practices, software that makes a ‘technical contribution’ which would not be obvious to a person ‘of normal skill’ in the field can qualify for a patent. Each national patent authority has also made its own interpretations of case law, further complicating the process of obtaining patents.

This has put added pressure on the EC to devise a standard approach in pursuit of a common internal market.



The issue of whether software should be patentable in Europe has always proved hugely divisive, pitting the open-source EuroLinux Alliance against the powerful software houses keen to protect their intellectual property. Yet, both camps are aghast at the EC proposal. Insiders say the EC secretly believes that if its approach pleases no-one, it must be right. But one thing most critics do agree on is that the proposal on “computer-related inventions” fails in the EC’s stated aim of harmonising and clarifying this murky area of law.

A cursory reading of the proposal suggests that it favours the status quo by merely codifying recent case law – an interpretation that the EC is keen to encourage. The proposal does not extend the scope of what can be patented, the EC says, nor the scope of the protection granted by the patent; and it upholds the existing rule that business methods cannot be patented.

But the complex legalese of EU documents has spawned radically different interpretations of what the directive actually means. This has sparked a very public row.

Members of the fiercely anti-patent EuroLinux accuse the Business Software Alliance, which represents large technology players, of colluding with the EC to devise a proposal favouring its members. To this end, they sensationally allege, the EC has ignored economic studies that contradict its arguments for software patenting and has used lies and myths to convince sceptics.

However, US and Japanese corporations – which enjoy much more extensive patent protection at home and account for the bulk of patent applications in Europe – are not thrilled with the EC’s draft directive, either. They insist that the directive will make it more difficult to patent software than under the present system.

This makes the claims of European Commissioner Erkki Liikanen even more bewildering. He argues that the proposal “represents a reasonable middle ground in a field where dissenting views had been voiced”. Liikanen claims to have reconciled the diametrically opposed views by keeping the requirement for patents to be granted only when the “invention” makes a “technical contribution” to technology.

The EC has so far avoided defining a “technical contribution”. This, argues EuroLinux, is where the proposal falls down. It leaves open “an undefined limit to patentability in Europe”, paving the way for software and, more controversially, business methods to be patented. In its current form, EuroLinux says, the proposal looks likely to create uncertainty and stifle innovation: young software companies could find themselves in breach of existing patents or under pressure to devote valuable resources to patenting their innovations.

The French government has dramatically supported this view, declaring that it will oppose the proposal as it makes its way through the legislative pipeline. “[The directive] claims that ‘all programs when run in a computer are by definition technical. This would open the realm of patentability to all software and eventually business methods’,” explains Christian Pierret, Secretary of State for Industry.

France will jockey for position with the powerful lobby groups financed by global software vendors. The proposed directive now faces a turbulent journey through the European Parliament and Council of Ministers.

Pete Swabey

Pete Swabey

Pete was Editor of Information Age and head of technology research for Vitesse Media plc from 2005 to 2013, before moving on to be Senior Editor and then Editorial Director at The Economist Intelligence...

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