October 25, 2000

European software patents revisited: Commission looks for comments

Author: JT Smith

By Tony Granata
News Editor

In anticipation of a European Patent Office Conference, which will examine the European Union's software patent laws Nov. 21 to 29, the European Commission is looking for input from people who have opinions on whether European governments should expand their patent authority.

The European Commission has also set up a patent debate exchange on the Internet since this summer, when NewsForge published an article, "European patent war pending", about debates raging in Europe concerning the future of software patents. Since then, a Northern European Linux user group has weighed in with an article, "Software patents -- No thanks!"

What's new

On October 19, the European Commission released the results from "The Economic Impact of Patentability of Computer Programs" study. It's a report to the European Commission by Robert Hart (Independent Consultant), Peter Holmes (School of European Studies, University of Sussex) and John Reid (IP Institute) on behalf of Intellectual Property Institute, London.

The purpose of the study is to provide information allowing the
commission to assess whether the existing patent directive should be altered to more specifically outline exactly how software patents should be granted or denied. The study also examines whether the commission should extend the scope of application of the directive to encompass broad software patenting.

The report addresses the following issues:

What is the current legal situation in Europe, the United States, and Japan concerning the patentability of computer programs?
What are the main effects that the law in these regions has had on innovation and competition?
What are the roles and the interests of European independent software developers, including the developers of Open Source software in relation to patent protection for software?
What is the impact of software-related patents on electronic commerce?

In conjunction with the release of this report, the European Commission has launched what it's calling a "consultation" section on the Internet about the patentability of computer-implemented inventions. Interested parties and the public at large are invited to comment until December 15 on the basis of this consultation paper.

He said

In a statement, the commission explained the debate: "Some sections of European industry have repeatedly asked for swift action to remove the current ambiguity and legal uncertainty surrounding the patentability of software-related inventions. Their argument is that in the absence of such patentability, Europe risks losing the global innovation race in this high-technology sector. On the other hand, a substantial number of small- and medium-sized enterprises and those favoring the creation and use of open source software, the so-called 'open source community,' have increasingly raised concerns about software patents. The consultations just launched will give all parties another chance to comment on the issue."

The commission has said it will make a final decision only after the end of this consultation period. In deciding its policy, the commission will consider the likely impact of patents for computer-implemented
inventions on:

Innovation and competition, both within Europe and internationally,
European businesses, including small and medium-sized enterprises,
Electronic commerce,
The creation and distribution of free/Open Source software.

"It is possible that this [November] conference will decide to delete computer programs from the list in the convention of items that cannot be patented," according to the commission.

She said

Last month, an article written by Anne Ostergaard, Carsten Svaneborg, Hanne Munkholm, Keld Jorn Simonsen, and Niels Jorgensen from the Skane Sjælland Linux User Group (SSLUG), a Swedish/Danish association with 5,800 members, called "Software patents -- No thanks!" was published on a number of Web sites and in newspapers in several EU member countries. The article raises the concerns many Open Source advocates find troubling about software patenting.

In addition to its publication in newspapers and Web sites, "the French will include our article in a report to the French Government," said Ostergaard of SSLUG, "and it was officially sent to the EU commissioner responsible for the software patents file ..."

She added: "Patents have become an industry in itself, a lucrative way of making a living on other people's creativity, for patent offices, patent agents, and patent attorneys at law. It benefits mainly the multinational computer firms, which don't need the protection, they can manage very well without patents as they sell closed-code programs."

She's not a big fan so far on the European Commission's Internet consultation. "So far it is a one-way communication, we cannot see other people's comments and we are not able to take part of the answers from other countries, groups or individuals," she said. "This is against the philosophy of Open Source and of a fair democratic process. We in the European Linux Alliance find it necessary to be able to see the answers in order to be able to follow the debate. It is possible that EuroLinux will put up a website where people can see at least some of the answers, but hopefully the EU Commission will publish the answers on the Internet."

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