The problem of harmonizing patents across the EU member states is back on the agenda, as current European commissioner for internal markets and services Charlie McCreevy is having one more attempt during his mandate to introduce reforms. Key to his efforts will be proving to software developers that EU patent institutions can be trusted with software patents.
The EU Commission is inviting views from individuals and organizations until March 31, 2006. A commission debate on the feedback is to be subsequently held around June.
The problem for the EU is that individual member states have different laws and there needs to be a common policy that holds across the EU. This policy needs to be one that is more streamlined than current practice, for example, making it easier to apply and enforce patents throughout the region.
The stumbling block is the thorny question of software patents: thorny because it is not at all obvious that pure software ideas should be covered by patents – a belief common within patent attorney circles, but questioned within the wider community.
Part of the problem is the debacle of the patent system in the US, which allows both software patents and business processes, and is bogged down by litigation. The US looks at the EU with envy in this respect, despite its lack of harmonization, so should the EU follow the US route blindly?
The crux at the heart of the issue is the element of ‘genuine technical innovation’ that is required for a patent to be awarded – after all, if the state is to grant an entity (individual or organization) a monopoly, it needs to be certain that the entity truly merits that monopoly; but the current patent awarding institutions lack the time and expertise to test for true software innovation.
The proof is in the patents that have been awarded for software to date. The current system has not prevented software patents from being awarded in individual states – the point is that none have been enforced or tested in court.
Should the EU allow software patents, they not only need to satisfy everyone that the review process is substantially improved, but that there is a strategy to deal with the 30,000-odd existing patents that could make writing software a legal minefield. These questionable patents could deluge the EU, creating a legal nightmare.
The absence of sufficient rigor over prior art is at the root of the reaction against the EU’s attempts so far to include software in the patent harmonization: many people simply have no confidence that anything has changed. This is all a pity because patents are necessary in a modern industrial society and the EU badly needs harmonization to increase its competitiveness in the global market.
In order to address the issue, the EU should decouple software patents from the current harmonization drive. This would ensure maximum support to start the reform process. In the meantime, there should be efforts made in a separate debate to convince the community that the EU patent institutions can be trusted with software patents. Software developers want to believe that the trust is deserved, but so far the evidence is lacking.
Source: OpinionWire by Butler Group (www.butlergroup.com)