Europe Keeps Ban on Software Patents -- for Now

A diplomatic conference in Munich to revise the European Patent Convention decided Tuesday to maintain a ban on software patents, pending the outcome of a European Commission consultation on the matter.

Patents on software are not yet allowed in Europe -- but they are in the U.S., where software patents such as Inc.'s for one-click shopping patent or Inc.'s for letting customers set their own prices for products have generated a great deal of controversy.

Software is excluded from the list of patentable inventions by Article 52 (2) of the European Patent Convention. In September, the Administrative Council of the European Patent Organisation (EPO) voted 10 to 9 to delete that exclusion from a draft convention to be discussed at the Munich conference -- but on Tuesday afternoon, conference delegates decided to reject the council's amendment and reinstate the original text of Article 52 (2), according to James Philpott, a spokesman for the U.K. Patent Office, which has a delegation at the conference.

The European Patent Organisation unites the fifteen members of the European Union, and Cyprus, Liechtenstein, Monaco, Switzerland, and Turkey.

Philpott dismissed reports that there had been a formal vote in which only Austria, Liechtenstein and Switzerland opposed the exclusion.

"There could have been a formal vote on it, but there wasn't. The chairman decided there was enough support for a Germany-U.K.-France proposal, and that it would not be put to a vote to avoid embarrassing the EPO," he said.

But the decision is not definitive.

The ban on software patents "has just been reinstated pending consultation by the European Commission," he said.

This part of the convention has been the subject of intense lobbying by the software industry -- but opinions are divided.

"People's views are very clearly split, but they are not necessarily split according to obvious industry lines," Philpott said. It's not a matter of big companies against small ones, he said, as there were companies both large and small on both sides in the debate.

The European Commission opened its consultation on software patents on Oct. 19, and set a deadline of Dec. 15 to receive comments. The U.K. Patent Office is running its own consultation process in parallel. It has already received responses from outside the U.K. but, Philpott said, "How much weight we will give to non-U.K. respondents is still being discussed." Nevertheless, pro-patent U.S. software developers such as Microsoft and IBM "can respond as U.K. constituents because they have U.K. subsidiaries," he added.

Among the anti-patent lobbyists is Nicolas Pettiaux, Belgian representative for the EuroLinux Alliance, a group of software publishers and non profit organizations.

"Yesterday's vote should not be interpreted as a vote against software patents, but rather as a vote to postpone any decision on this matter until the consultation launched by the European Commission is closed," said Pettiaux in a statement.

Other lobbyists see little hope of a fair trial there: the European Commission "has approached the software patent issue with an ideological point of view.... obviously biased in favor of software patents," according to Stéfane Fermigier of the Association Francophone des Utilisateurs de Linux et des Logiciels Libres (AFUL).

"We are still very far from a decision to ban software patents in Europe," he said in a statement Wednesday.

The Diplomatic Conference to revise the European Patent Convention, in Munich, runs through Nov. 29.

Further information on the European Commission's software patent consultation can be found on the Web at

The European Patent Office, the executive arm of the EPO, can be found on the Web at

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