The European Commission (EC) warned on Wednesday that patent offices across Europe will continue to grant software patents, despite the European Parliament's decision to reject the Computer Implemented Inventions directive.
The directive was criticised by various trade organisations and open source groups, including UEAPME, a European trade association representing more than 11 million companies; CEA-PME, a trade association that represents more than 500,000 businesses; the Foundation for a Free Information Infrastructure (FFII); and the Free Software Foundation. These groups were concerned that the directive would open the door to the widespread patenting of software, allowing large businesses to shut out competition from SMEs and open source groups.
The rejection of the directive was considered a success by many of these organisations, and a clear sign that software per se should not be patented. But the EC claims the patent directive was only about harmonising the rules on software patents, and that software patents that make a "technical contribution" will still be granted by patent offices.
"The Commission maintains that, without the directive, patents on computerised inventions will continue being granted by national offices and the European Patent Office," said the Commission in a statement. "It [the EPO] does not grant 'software patents' — computer programs per se, algorithms or computer-implemented business methods — that make no technical contribution," said the EC.
Hartmut Pilch, the president of the FFII, said that even if software patents are granted, they may not be valid. "At the moment the granting of software patents is on a shaky legal basis," said Pilch.
The FFII does not yet have an action plan for what it will do next, but may consider challenging some software patents in the law courts.
"People are exhausted, but we are thinking about what next steps might be," said Pilch. "We need to be attacking patents using national laws to move case law in our direction, but this is expensive. It costs around €50,000 (£34,000) for a validation proceeding and could easily go over €100,000."
The FFII reported an income of €172,000 from January to July 2005, so one lawsuit would consume a considerable proportion of the organisation's funding.
Talkback
Software patents wouldn't have worked
Any country who implements software patents at a national level will put themselves at a disadvantage.
Suppose the UK implements software patents and Czech Repulic doesn't. UK companies will be blocked from implementing some software, while the Czech company won't. Under EU free trade rules Czech can sell their product to UK and UK can't block it.
So UK will simply prevent itself from competing, software jobs will travel from the UK to Czech Republic and MPs will have to explain to the UK public why they are not allowed to compete.
Even if software patents were all through Europe, they don't work. Suppose I am granted a patent in Europe for my software. I have to disclose how it works to get the patent, if I don't disclose it, I can't use trade secrets which works everywhere.
My patent on the other hand only works in Europe.
Worse, if I don't reveal my secrets, someone else can patent their similar creation and block me! So I'm forced to patent and forced to give away my trade secrets.
Asian countries can read my patent, copy my idea and sell their software to Europe over the Internet.
So I've gone from excellent cheap worldwide protection (trade secrets) to limited Europe only protection (software patent).
Software doesn't work like hardware, you can't block import at the border! You're not even legally allowed to try to block internal Europe trade.
So they were dumb and its time to go back to trade secrets & copyright as protection which has worked excellently for decades.
Challenge the process not the patents. The EPO can grant an infinite number of invalid sw patents and grind the proponents for a free market down that way. Better to focus on the cause and get the EPO to stop granting sw patents in the first place and, since they know they are invalid, revoke ones already granted.
Apparently, stronger speech is needed than in the European Patent Convention which already seems to prohibit sw patents. Perhaps legislation specifically prohibiting sw patents is needed now.
By defeating the CIID, Europe has gained an enormous advantage over the US. Recent changes to immigration laws will heighten that advantage and Europe would do well to capitalize on that advantage now, before the US reacts either via trade like against Aus/NZ or by lifting the burden of sw patents from their own domestic market.