Activists warn of rerun of Euro software patent fight

Consultations on an E.U.-wide patent law could be used to reintroduce software patents through the back door, say opponents of such a move.

Opponents of attempts to allow software to be patented in the European Union warned Monday that new consultations on an E.U.-wide general patent could be used to reintroduce software patents through the back door.

Speaking at a panel discussion on implications of a new attempt by the European Commission to overhaul the E.U.'s patent system, the president of the Foundation for a Free Information Infrastructure (FFII) warned that such a review could lead to software patents. "If you take the case law of the EPO (European Patent Office) and apply it across the board, that means allowing software patents," said Pieter Hintjens, who is also founder and managing director of a Belgian software company, iMatix.

Hintjens said that, from his contacts with the chief executive officers of small and medium-size businesses, it was clear they did not like and did not trust software patents. He called patents in a technology-driven sector "obscene." He cited a patent held by a company in Belgium called All is Blue which covered the management of e-mail and address data in response to text messages as an example of a "trivial" patent where the company was trying to earn money from exploiting its patent rights.

In February, the European Commission, which drafts laws for the 25-member bloc, launched a new round of public consultations on the E.U.'s patent system to find out from industry and interest groups what changes were needed to the regime to make it easier to use. The fresh consultations followed a deadlock over setting up an E.U.-wide "community patent" and the rejection by members of the European Parliament last July of the so-called "software patents directive", a piece of legislation on the patentability of computer programs implanted in a range of other technologies such as washing machines or mobile phones.

However, Hintjen's claims were contested by a representative of a range of international IT companies. "The consultations on patents are not a reinvention of the C.I.I. [computer-implemented inventions] Directive. It is not an initiative to revive the debate on one area of patent law", said Francisco Mingorance, director of public policy for the Business Software Alliance (BSA). BSA's members include 25 international companies including IBM, Microsoft, Cisco Systems, Dell, Hewlett-Packard, Intel, SAP, Symantec and Apple Computer as well as 30 smaller European software developers.

Mingorance pointed out that in the questionnaire the Commission had prepared as part of the consultation, it had asked for responses to four options, one of which was a new push for a community patent. Other options included doing nothing to change the current system or tackling problems with the current regime through other approaches. This included all member states signing up to the London agreement which would reduce the number of languages patent applications had to be filed in to to three: English, French and German, Mingorance said.

The BSA is in favor of a more cost-effective and accessible patent system, he said. In its submission to the Commission as part of the consultation, the BSA might back a new bid for a community patent, he said, adding that he doubted whether the member states would accept a new proposal after six years of discussions. He said that other approaches such as ratifying the London agreement or approving the European Patent Litigation Agreement might achieve the goals of making the E.U. patent system cheaper to use. He cited figures from the European Patent Office which showed that the cost of filing a patent application in the E.U. is Euro 24,100 (US$28,640), compared to Euro 10,250 in the U.S. and Euro 5,460 in Japan.

However, Hintjens said that the key issue is whether it is possible to patent software. "If patents are not good, they shouldn't be enforceable," he said. He added that the fact that patents were expensive to obtain in the E.U. could have helped innovation because in the U.S. where patents were much cheaper there were a lot of junk patents.

The consultation will continue until March 31. Interested parties can submit their points of view at: http://europa.eu.int/comm/internal_market/indprop/patent/consultation_en.htm.

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