Showdown over European Software Patents
Posted by: Steve Hamm on June 24, 2005
Get ready for yet another battle in the European Parliament cloakrooms over the future of software patent law. Back on June 22, the parliament’s legal affairs committee voted to allow patents to be issued to protect software. It was a reversal of a vote by the whole parliament two years ago which basically shot down software patents. That surprise move came after a hot and heavy lobbying campaign from open source leaders, who convinced legislators that patents would crimp the innovations from individual programmers, open source folk, and small software shops—which either opposed patents on principle or can’t afford to file for them. The European tech bigs had been caught napping by the 2003 vote. But now they’re fully engaged and pushing hard for patent liberalization. A vote is scheduled for July 6, and it’s hard to guess which way things will go—pro-patent, anti-patent, or back to square one. It will be fascinating to watch how this one turns out.
On one of the big concerns of the open source folks is that Microsoft would use software patents in Europe to scare both tech companies and tech users off from using open source software. That's legit, but they may be over-reacting. Microsoft would be crazy to actually file suit against corporations who use open source software--claiming patent infringements. That's about 60 percent of the world's companies, by most estimates, and almost every one of them is a Microsoft customer. Rule #1 of good business practices: Don't sue your customers.
The major impact of all of these debates and reversals is that patent officials in Europe have slowed progress on new software patents to a crawl, and some American tech companies have delayed filing patent applications there. Even though pure software patents are not legal in Europe, with the proper wording, they get approved. To clear the hurdle, applications have to make it clear how the software is expressed in a computer. So they have to be technology patents, not process patents--which have been so controversial in the US as Europe.
Jones Day, the big international law firm, held a phone briefing for reporters today, and basically came out in favor of software patent liberalization. They say they represent clients on both sides of the issue. "What's pretty clear in Europe is we don't want pure business method patents, like we see in the US. But what about software? This should be patentable. They belong to the field of technology. I don't see any reason to deny patent protection to this kind of technology," said Wolfgang Reichl, of the firm's Munich office.
I tend to agree with hiim. I'm usually inclined to side with the open source folks, but this is a case where I think they may be going too far. What do you think?