[Discussioni][Fwd: [Patents] The Economist on Software Patents in Europe]

[Simo Sorce]

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Subject: [Patents] The Economist on Software Patents in Europe
Date: 07 Sep 2003 09:35:04 -0400


> http://www.economist.com/business/displayStory.cfm?story_id=2043416


Software patents 

A clicking bomb

Sep 4th 2003 


An explosive row over how to protect intellectual property in Europe


WIDGET inventors file patents. Prose and pictures are protected by
copyright. But what about a new piece of encryption software or an internet
business method, such as Amazon.com's “one-click shopping”? Should they also
be covered by patents, or do copyright and trade secrets suffice?

These questions underlie a heated controversy in Europe pitting open-source
advocates, software developers and academics against big software firms,
intellectual property lawyers and the European Commission. Because of the
row, the European Parliament has again postponed the first reading of a
directive on computer-related inventions, scheduled for this week. And it
remains to be seen whether the parliament will tackle the controversial
proposal when it reconvenes on September 22nd.

The issue of patents for software and business methods has been causing a
stir in America ever since the Patent and Trademark Office started issuing
patents on internet business methods in 1998, most famously that for
one-click shopping. Proponents argue that these patents provide the
necessary incentives to innovate at a time when more inventions are
computer-related. Critics claim that such intellectual monopolies hinder
innovation, because software giants can use them to attack fledgling
competitors. Moreover, as software is often built on the achievements of
others, writing code could become a legal hurdle race. By analogy, if Haydn
had patented the symphony form, Mozart would have been in trouble.

If the debate is more heated in Europe, it is because the directive in
question is supposed to achieve two things at once. For one, it aims to
harmonise how computer-implemented inventions are dealt with across the
European Union—in order to avoid situations in which an invention is
protected in one member state but not in another. Now, although many patents
are centrally awarded by the European Patent Office (EPO) in Munich,
national courts have the final say over a patent's validity. In Britain,
business methods are generally not patentable, but they can sometimes be
patented in Germany. The EPO, by the way, granted Amazon a patent in May
covering computerised methods of delivering gifts to third parties, a
descendant of its one-click patent in America.

Such cases illustrate the directive's other thrust. The European Commission
wants to avoid the American situation, in which case law drives authorities
to issue computer-related patents all too easily, in particular for business
methods and algorithms. Software, say to control an X-ray machine, should
remain unpatentable, but the entire apparatus—the combination of software
and hardware—could be protected by a patent. In the words of the directive,
to be patentable an invention must make a “technical contribution”—meaning
“a contribution to the state of the art in a technical field which is not
obvious to a person skilled in the art”.

Unsurprisingly, this definition is particularly controversial. Larger
software firms in the Business Software Alliance are happy. Smaller firms
and open-source lobby groups, such as the Foundation for a Free Information
Infrastructure, are up in arms. They think the directive's lack of clarity
will make American-style patents possible, and are arguing for a more
watertight definition.

Arlene McCarthy, the rapporteur of the European Parliament's committee for
legal affairs and the internal market, has now proposed an additional test
for patentability: an invention must teach a new way to use “controllable
forces of nature” (really) and have an “industrial application”. This aims
to strengthen the exclusion of pure software and business methods.

Finding the right balance will not be easy. Patents can be a spur to
innovation, but they can also be an obstacle, and the great advantage of
digital technology was supposed to be its very malleability. Moreover, there
is another headache. The harder it is to patent computer-related inventions
in Europe, the wider will be the legal gap with America.

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