The European Parliament's decision to limit patents as they apply to software and business methods risks creating a "patent war", with fallout that could make it illegal to access some European e-commerce sites from the US, analyst firm Gartner has warned.
The European Parliament recently voted to approve the Directive on the Patentability of Computer-Implemented Inventions, but with a series of amendments designed to limit the ways in which software can be patented. For example, pure software should not be patentable, the Parliament argued, and software makers should not be required to license patented technology for the purposes of interoperability -- for example, creating a device that can play a patented media format, or allowing a computer program to read and write a competitor's patented file formats.
The amendments also sought to ban the patenting of "business methods", such as Amazon's patent on "One-Click" purchasing. In the US, business methods and pure software are routinely patented, a situation which has been harshly criticised by IT executives, software developers, economists and others as harmful to competition and innovation.
Now anlayst firm Gartner has highlighted potential problems that could arise from the EU's patenting system being out of step with that of the US, even if the EU's system is more effective. For example, if a patented e-commerce technology is enforceable in the US but not the EU, US users could be breaking the law by accessing an EU Web site that used the technology, according to Gartner. "If the amended directive becomes law, the significant differences between the US and European approaches to software patenting raise the prospect of a patent war," the firm said in a statement.
Any practical effects will take until at least the end of 2005 to appear, Gartner estimated, as this is the earliest date at which EU governments would be able to introduce the directive's provisions into national law.
The US government has also expressed concern about the directive's amendments, according to documents seen by ZDNet UK. In a letter to the European Parliament commenting on the amendments, sent before the vote, a representative of the US government singled out three articles of the directive as particularly "problematic". The most troubling was Article 6(a), which states that patents cannot be used to restrict interoperability, the representative said, recommending that the article be deleted.
"Overall, the scope of Article 6(a) is so broad that it would significantly undermine the rights of affected patent owners," the representative wrote. If there were concerns about patents being used anti-competitively, these should be handled under competition law, he wrote.
The Foundation for a Free Information Infrastructure (FFII), which lobbied in favour of the amendments, responded that it would be absurd to rely on anti-trust law to protect the software industry from companies' attempts to control data exchange standards.
"The US DoJ v. Microsoft case shows how insecure and inefficient competition law is in this area," the organisation said in a statement. "Competition considerations need to be built into a patent directive which deals with software-related problems."
The patents directive will next return to the European Commission for review, followed by votes in Parliament and the Council of Ministers, after which, if approved, it will be implemented in the national laws of EU member states.
However, the European Commission has indicated that the amendments may be "unacceptable" to it, and is considering withdrawing the directive.
Talkback
With the depth of US gov, business and household debts running well over twenty trillion dollars, and with the increased competiveness, on the manufacturing front, of the Asian block + China, one would expect IP to take centre stage in the decade to come. Yet, though it may, questions surrounding the absolute uniqueness of what the US brings to the table will continue to rise.
One can only consider the fact that with developing nations gaining increasing access to development tools on all levels, there will be increased resistance to blanket type IP impositions.
Considering current changes in develoment models -e.g OpenSource Software, OpenSource Hardware (http://www.opencores.org/), - and increased communication and interracton all of which are giving rise to enhanced community based competence, would it be in the best interest of independent and developing nations to support the US govs IP drive.
This is nothing else than a superb proof of that it is the US that has to change it's law. USA have made it criminal for it's citizens to request certain information!
Now thats a corrupt system.
>> For example, if a patented e-commerce technology is
>> enforceable in the US but not the EU, US users could
>> be breaking the law by accessing an EU Web site that
>> used the technology, according to Gartner.
>Well, maybe soon they will not be allowed to leave the
>country as not to learn to much about free market!
It is not EU which is out of step. US law is out of step with EU and almost everybody else, including its own "IT executives, software developers, economists" and legal scholars.
That anonymous "representative of the US government" is at best ingenuous and more likely mendacious when he recommends competition law to resolve the defects of patent law. The US is using the WTO process and bilateral negotiations to establish supremacy of "intellectual property" claims over all other considerations, including life, health and safety.
Patents have always had territorial scope.
Of course using e-commerce accross state borders implies jurisdiction issues. Patents have always been a territory confined exclusion privilege. A US Patent has never been able to affect an EU transaction and vice-versa.
One should remember software is already unpatentable according to the European Patent Convention. This is one of the reasons why the Debian project has been keeping an non-US repository for some time. Some software is not available to USA residents because of their patent system. The amendments to the EU directive forbiding software patents make no change.
Claiming that everybody should have the same kind of patents as the US (or whoever grants more patents) to avoid this kind of conflicts is pointless. No one ever gets a patent in every possible state, and since patents have no force outside the territory that grants them, there is no way to ensure a transaction between some two territories
will never infringe some patent in one of them and not in the other.
A possibly way to mitigate that problem, if you see that as a problem, would be for everyone to use common sense law and not grant patents that can be infringed by mere global communication, which is so easy nowadays. It is certainly not the case that the whole world must adopt the practices that produce more prohibitions on communication and trade. What if country X decides tommorrow to grant patents on non-novel "inventions"?. Should the US, EU and the rest of the world adopt the same practice so as to avoid cross-border transaction problems?. Patent holders still wouldn't apply for a patent in every world territory anyway, so there would still be those cases.
So I really miss the point this Gartner analyst is trying to make.
Ludicrous. The US are wrong as per normal.
Years ago on non IT related matters it was explained to me that the US Patent office could not possibly process all the patent claims correctly as they did not have the technical knowledge. Their procedure was to grant patents and then "let the law courts decide". US companies used this knowledge to "expand" their claims.
The US Patent Office is now granting Software and other patents, still out of ignorance. They are wrong and need to clean their act up, not the rest of the world follow like sheep.
I would hate for my thought paterns to be patented by the software firm I work for.
The US should change their laws. The EU has correctly denied software patents.
Any attempt by the US to put pressure on the EU is just another example of their world market domination scheema.
PS.
I don't care if US citizens are breaking their law by accessing European sites. Since they vote for their representatives (or think they do) they diserve everything they get from them.