Europe's patents still too hard for Australian developers

The lobbying and posturing that preceded the European Union's 'Software Patent Directive' vote last week clouded what was, or at least should have been, a fairly simple proposition; to harmonize the practice of national patent offices and courts with that of the European patent office for computer implemented inventions.

The reasoning behind the proposal was to turn 25 patent regimes within Europe into one... a simple can into which those with vested interests placed a large quantity of worms.

Companies large and small find it easier to trade with nations that grant them a monopoly over what they have created.

The US with its 250 million-plus people offers that surety. So do many other countries, including 25 in Europe. But, although this continent of around 300 million people allows free travel, free trade and a virtually borderless community of nations, the individual nations have chosen not to harmonize their practices with that of the European patent office. You can be still granted patents in all these countries, but you have to do it 25 times to trade with them all.

So a common patent system was simply common sense. And that was all the proposal was about.

The arguments against the proposal came not from individual countries, but rather from philosophical blocs. The most vocal bloc was the 'open source' community with high-profile spokespeople such as Richard Stallman claiming an affirmative vote would play into the hands of Microsoft and other multinational giants, allowing them to frustrate smaller software developers through the patent system.

What Stallman didn't acknowledge was that 25 patent systems already existed in Europe and the sky hadn't fallen. What this bloc failed to grasp was that if they thought Microsoft too large and dominant, then there are perfectly sound paths to their end through anti-trust legislation. It happened to Bell, why not to Microsoft?

But no, instead they hijacked the debate and left Europe too fragmented and too costly for small software companies to deal with.

There are hundreds of such software companies in Australia, employing staff, paying wages and rewarding investors by trading with countries such as the USA. Last week's decision will mean that these same companies will continue to be denied a real opportunity to trade with Europe, because to do so will still require 25 times the cost and effort.

Chris O'Sullivan is a practicing patent attorney and fellow of the Institute of Patent and Trade Mark Attorneys of Australia

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