The divide between software engineers and patent attorneys over the issue of software patents and the corresponding directive before the European Union was evident at a workshop held by the U.K. Patent Office (UKPO) this week in London.
“I don’t know what [the UKPO] was trying to achieve really,” said workshop attendee Philip Hands after the event Thursday. “I’m pretty cynical about it.” Hands was there as a representative of the Open Source Consortium and is also the chairman of the free Linux distribution organization Debian.
The UKPO in February invited software developers and what it called patent professionals to a series of workshops to explore how to define the contentious border between patentable and non-patentable software-related inventions. The workshops, which began in Coventry, England on March 15 and ended Friday in Cardiff, Wales, have been held across the U.K. The workshop held Thursday was one of six sponsored by the UKPO in London for roughly 300 people.
Workshop attendees were assigned to test five sample patent applications against four different definitions of technical contribution. Technical contribution is the test used to determine approval of software patents in current E.U. law and within the “Patentability of Computer-implemented Inventions” directive, or proposed law, currently winding its way through the legislative process.
Current European law holds that software isn’t patentable. However, different European national patent offices have been interpreting the laws in a variety of conflicting ways. For example some authorities have ruled that a running program isn’t software but a virtual machine. Under E.U. law, machines are patentable.
The open source software community and groups like the Foundation for a Free Information Infrastructure (FFII) contend that copyright laws are enough to protect business innovations and would like patents for software to be strictly outlawed in Europe. On the other side, many patent lawyers and organizations such as the European IT and Communications Industry Association, which represents members such as Microsoft Corp. and SAP AG, maintain that some software needs patent protection. It is also a position that the U.K. government and the UKPO have lobbied for in the E.U.
The UKPO asserts that its ultimate goal is to reach a sensible resolution that assures Europe doesn’t mirror the wide-open U.S. approach of allowing patents, for example, for business methods, while still protecting for innovation. Despite such assurances, the UKPO has come under heavy criticism from those in the software community who see anything less than a ban on software patents as opening the door for a U.S.-style patent regime.
According to the UKPO, the workshops are intended to gain feedback from all sides of the debate to see if it can come up with a definition of technical contribution that is clear to software developers and also continues to enable the patent system to protect technical inventions.
“We realize that a patent is an incredibly powerful tool in the marketplace and we don’t grant them lightly,” said Jeremy Philpott, of the UK Patent Office after the London workshop.
Patent attorneys in the group said a broad definition is needed if the resulting law is not to become redundant with the advent of new technologies. The software engineers at the workshop remained unconvinced; echoing the general sentiment, one said that he saw no definition for technical contribution that “painted a bright line between what’s a machine and therefore patentable and what is not.”
Of more concern to the self-described techies in the audience was the lack of time provided at the end of the two hour session to discuss to the wisdom of patenting software.
“[That] broader question is for a debate for another day,” Sean Dennehey, the UKPO officer running the workshop said at the end of the session.
Dennehey and Philpott did take a straw poll asking if software should be patentable. By a show of hands, 10 in the room voted yes, 16 voted no and four abstained.
Delegate Bob Richmond, a software engineer with Saqqara Technology Ltd. who said he was there out of a sense of civic duty, walked away remaining pleased he had attended the workshop but also feeling skeptical about the exercise. “The type of feedback they collected was very narrow in scope and seemed to have missed the point. It is my belief, that as they promised, they will take the feedback and present it in a report to David Sainsbury [the head of the UKPO], perhaps with a recommendation on technical contribution. They will simply continue to do as they like, despite the real concerns about patenting software.”
Hands was also less than certain what the ultimate intention of the UKPO is. “If they are being genuine about trying to get feedback, they should have told people about how they were structuring the workshops,” Hands said. “I arrived thinking it was going to be a bit more of a open discussion, tactical thing.”
