August 18, 2000

European patent war pending

Author: JT Smith

By Tony Granata
News Editor
A heated debate is coming to a head across the pond concerning the future of software patents. Currently, software patents without industrial application are prohibited in Europe under the laws of the Munich Convention.However, due to several factors, including the boom of the software industry and confusion of the European Patent Office about applying
the current law, this policy will be revisited in the coming months. Many fear that the European Union will change its current position on
software patents.

While the opposing forces, Internet patent experts and the
European
Patent Office
(EPO) versus the Open Source Community, agree that clarification on software patent law in Europe is necessary, they
differ about the best way to approach these changes. Internet patent experts and the EPO say the Munich Convention should be revised and most exceptions to software patents removed. This could give them free reign to determine what is patentable, potentially opening the floodgates on broad software patenting, much as in the United States.

Open Source advocates say the Munich Convention laws should remain as written and vehemently enforced. This would limit the EPO's judicial powers on what is deemed patentable, resulting in tighter
control and more restrictions on patenting of what critics say are trivial software processes with no industrial application.

Internet patent experts at patent offices, law offices, multinational companies, and the EPO have received strong support in their lobbying efforts from the U.S. government through the Word Industrial Property Organization. They argue that although European law prohibits software patents, the European Patent Office has already granted, by circumventing the law, more than 10,000 patents on software programs.

They also argue that:

The success of Microsoft is a ringing endorsement that software patents are good for the software industry;
No economic study has determined that software patents are detrimental to innovation and competition;
The United States and most recently Japan have endorsed broad software patents, therefore so should Europe.

The EPO's "Basic Proposal For The Revision Of The European Patent
Convention" released March 24, 2000, is available online.

The Open Source community lobbying against software patents in Europe
has formed The EuroLinux Alliance, a coalition of commercial companies and non-profit associations dedicated to promoting Open Source
standards within the software industry. Group members fear that broad software patents will result in damaging effects on software innovation and competition, and that broad software patents will be used to patent Internet, business and educational methods. Opponents of the proposed change point to the recent track record of the European Patent Office using its power to broaden the scope of patentability as a reason the current law
must be enforced, not revised.

Jurgen Siepman, legal adviser for a European Linux group, says, "Under the pressure of patent professionals, the European Patent Office invented its own rules in order to grant more than 10,000 software-related patents, more than 75% of which were filed by non-European companies."

As of July, one month after it started circulating, the EuroLinux Petition for a Software Patent Free Europe had been signed by 20,000 Europeans, including 300 corporate executives, 50 companies and more than 20 non-profit associations.

Reason for patents

Patents were first formalized in England in the 1623 "statute of monopolies." By allowing inventors to publish and monopolize their ideas, instead of keeping them as guarded secrets, industry wide innovations could be shared, improved and expanded upon. But Open Source advocates argue that broad interpretation and clever formulation of patent application by large corporations has allowed for the patenting of Internet methods, education methods and other elementary software processes. Klaus Weidner of Munich, an anti-patent advocate, says: "Patents are supposed to promote invention and progress, but software patents would have the opposite effect. Interoperability between programs requires either open standards or reverse-engineering of protocols or file formats."

Hand and hand with the problem of what patents are being granted is the current patent review process, opponents of patent expansion say. Many anti-patent advocates such as Greg Aharonian believe that up to 90% of all software patents granted by the United States Patent Office could be debunked. "In short, no patent office around the world has really ever mastered the process of large scale patent examination," he says. His article "Patent Examination System is Intellectually Corrupt" is available.

What's next

A patent directive by the European
Commission is scheduled to be released this summer, and it's likely to be discussed for several months before it can be approved by the European Council of Ministers. Then it will be translated into national laws. An intergovernmental conference revise the Munich Convention is scheduled for November 2000. Once the Munich Convention is revised, the directive will likely be approved after December 2000.

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