UK Patent Office under fire over software report

"The requirement for a 'technical contribution', which is supposed to prevent pure software and business method patents, is toothless," said Pollock. "Technical contribution can consist of something like reducing the number of necessary mouse clicks to buy something."

Hudson claimed that almost any well-written software could be defined as making a technical contribution.

"Whether software has a technical contribution is a function of how well you write software," said Hudson. "It is very, very easy to find technical contribution in software."

Hudson also said that the lack of clarity on technical contribution does not just affect the software industry at it also opens up the possibility of patenting of business methods.

"The directive is opening a backdoor to business methods," said Hudson. "If you can find technical contribution, you can patent business methods also. The business community will be worried about this as traditionally have never been able to patent business methods."

The UKPO feels that the directive will make the UK less likely to move towards widespread patenting. "We need a directive to clarify the situation and prevent a drift towards the more liberal patenting regime of the United States," stated the UKPO.

But Mueller said that the patent directive will open the way for widespread patenting, which will make the UK drift closer, rather than further away, from the US system.

"What they [the UKPO] want is to cast the high degree of Americanization that they have already achieved in stone through an EU directive, and to expand further thereafter," claimed Mueller in a forum posting on his Web site.

In the 'Fact & Fiction' section of its document, the UKPO says that the patent directive is not harmful to SMEs, "The patent can be very helpful to SMEs because it allows them to hold their own against big business."

This view is strongly contested by a number of UK SMEs which have expressed their views on patents on a Web site set up by the FFII. One posting, from the managing director of a small software company, states that the patent directive could make it hard for SMEs to develop software.

"I believe that the proposed European legislation on software patents will be a disaster. It will destroy the UK software industry except perhaps for the very largest companies," said the posting. "[The directive] will make it impossible to create software without a team of lawyers watching your back and substantial legal fighting fund to fend off the larger neighbours."

Mueller said that small companies are unlikely to sue large companies, such as Microsoft or IBM, for breaching patents as these companies can afford to drag out a case for years, or could countersue using their huge bank of patents.

Even the UKPO's initial assertion about the EU Council's proposal has evoked controversy. "The EU council has agreed a text which reflects the current position in the UK and other member states," states the UKPO. That text will now be debated by the European Parliament."

But Hudson and Mueller point out that this directive has not been formally approved. The EU council voted on 18 May in favour of changes to the EU software patents directive, but this political agreement is not legally binding until the proposal is formally adopted. This is expected to happen when the EU Council meets at the end of November, at which point it should then be considered again by the Parliament.

Indeed, since the initial agreement, a change in the voting weights of EU members means that the EU Council members which supported these changes to the directive no longer have a majority vote. This has prompted some campaigners to call for a recount.

In addition, the four main political parties in Germany have agreed that changes need to be made to the directive, in contradiction to what the German representatives at the EU council meeting initially agreed. This may put pressure on the German representatives on the EU Council to change their initial opinion.