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EU & US Patent "Syncing"
Christian Treczoks writes "Software patents are threatening Europe, too. The EC said "we want software patents to harmonize with the US", but the public - private persons and small to medium businesses - objected. So they made an "Analysis" of the replies.
Effectively, 91% are against patenting software, but, as the majority of the proponents are important business figures, it's a draw. " Mmmm...corporate interests. "Fun".
Final Report by PbT Consultants
Under contract number PRS/2000/A0-7002/E/98
THE RESULTS OF THE EUROPEAN COMMISSION
CONSULTATION EXERCISE
ON
THE PATENTABILITY OF COMPUTER IMPLEMENTED
INVENTIONS
PbT Consultants Ltd
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0. Executive Summary
Introduction
On 19 October 2000, the European Commission, DG Internal Market, launched a consultation on the subject, "The Patentability of computer-implemented inventions". The aim of the consultation was to seek the views of interested parties, the public at large and Member States in order to help the European Commission formulate a policy that strikes the right balance between promoting innovation through the possibility of obtaining patents for computer implemented inventions and ensuring adequate competition in the market place.
DG Internal Market produced and made available on its web site a consultation paper that invited comments by 15 December 2000 on the preferred scope and economic impact of harmonisation in the area of computer implemented inventions. The paper contained a number of proposed "Key Elements" for a harmonised approach to the patentability of computer-implemented inventions in the European Community.
The Response
A total of 1447 responses were received, amounting to around 2500 pages of text. The largest single element in the response was a "petition" organised by the Eurolinux Alliance who had requested responses to be sent to themselves for forwarding to the Commission. Almost 1200 such responses were forwarded along with the response from the Alliance itself. Eurolinux is an alliance of over 200 commercial software publishers and European non profit associations with the goal to promote and protect the use of Open Standards, Open Competition and Open Source Software such as Linux. Responses were received from individuals and organisations in all EU and EEA member states apart from Liechtenstein , various CEEC countries, the US, Australia and South Africa.
The Scope of Harmonisation
The consultation paper asked the following questions:
- Should harmonisation take place on the basis of the elements contained in this document? Or:
- Should a more restrictive approach be adopted? Or, conversely:
- Should more liberal conditions coming closer to the practice in the United States of America prevail in the future?
Almost all of the responses fell into one of the following two distinct groups:
Restrictive Approach - Opposed to most software patents Members Students, academics, engineers, start-up companies Concerns Threats to the open-source movement and SMEs, lack of patenting resource and expertise, fear of litigation, negative impact on standards for interoperability
Proposals Severely restrict the patentability of software Limit infringement liability for "open-source" software Reject all business method patents
Liberal Approach - Apply traditional patentability criteria to computer-implemented inventions Members Lawyers, established industry players, government agencies, Concerns Protection of development investment, equality with the US, opening up of global markets
Proposals Harmonise the application of European Patent Office practice Apply patentability criteria to software that are slightly more liberal than those proposed in the Commission consultation paper Take extreme care with patenting of business methods
It was clear that the group opposed to software patents (91%) numerically dominated the response. A large proportion of this group was explicitly from the "Open Source" movement including the Eurolinux "petition". 54% of responses that were sent directly to the Commission and were not from explicit "Open Source" respondents, supported software related patents.
If account is taken of the economic muscle and number of organisations represented by responses from industry and other associations it can be argued that there is an "economic" majority in favour of patents on computer-implemented inventions.
On the other hand, those opposed to software patents would claim that due to the size and fragility of their organisations, they require support. They would also claim that it is only the "open-source" movement, e.g. Linux, that can effectively take on the "Micro$oft"s of this world.
Ultimately, the weighting of the two points of view is a political matter.
The Impact of Harmonisation
The consultation paper asked for comments on the impact of the respondents' preferred scope of harmonisation under the following headings:
Innovation in software and underlying knowledge and techniques
All but the most radical of respondents agreed that innovation was fostered by patents in other areas of technology. However, those opposed to software patents claimed that software technology was sufficiently different to justify a different approach. Both the nature of the technology itself, for example, the incremental nature of the development process and the existence of a supposedly unique business model, i.e. open-source, were cited as key differentiators of the technology.
Impact on SMEs
Opinions were divided on whether the impact of software related patents was negative or positive on SMEs. Little hard evidence was provided of business failures or patenting triumphs, apart from Stac v Microsoft where an SME successfully sued Microsoft for infringement of a software patent.
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