EC proposes controversial patent law

The European Commission Wednesday unveiled a controversial proposal for a harmonized law on software patents that is less encompassing than laws in the U.S. and Japan.

The proposed law, which would replace 15 different regulations in the 15 countries within the European Union, would only allow patents for software applications of a technical nature — that is, software that runs a mechanical device or changes how a mechanical device works — and it would not permit patents on business methods. Examples of the kinds of software that could be patented would include software that runs an X-ray machine, or that makes a PC run faster.

The U.S. and Japan allow patents on a much wider range of software, and they both permit patents on business methods. Business methods include innovations such as one-click purchasing, for which online retailer Inc. received a patent in the U.S. in 1999.

Amazon used the patent to get an injunction against use of a similar purchasing feature by a rival, Barnes & Noble Inc., but that injunction was lifted by an appeals court this year pending a trial.

“The Commission thinks that allowing a patent for the ‘one-click’ purchasing technique goes too far in restricting trade,” said Frits Bolkestein, commissioner in charge of the internal EU market, in a press conference Wednesday.

He described the Commission’s proposal as a compromise between the stance taken in the U.S. and the position of the open source software community, which opposes all patents on software products. “The U.S. approach is too restrictive, while the (open source) approach is too liberal,” Bolkestein said.

In anticipation of a hostile reaction, he added, “We will take complaints from the U.S. on the chin.”

Criticism is also expected from within Europe, not least from the European Patent Office, based in Munich. “The EPO has of late taken a more restrictive approach, issuing patents to software applications themselves,” Bolkestein said. “The member states of the EU are waiting eagerly for the Commission’s position.”

The EPO can register patents for every country in the European Union. However, the system is expensive, because applicants have to pay each country’s national patent office to exercise their protection in that country.

The EPO eventually will have to bow to the directive once it is transposed, as expected, into national law in the member states, but even then there could be some confusion, said Ari Laakkonen, a lawyer with the U.K. law firm Linklaters & Alliance.

The European Parliament and national government ministers will debate the proposed law. Under the normal time frame, if approved, it would reach the national statute books in about 18 months.

In 1999 the EPO board of appeal granted International Business Machines a patent for a software application with no clear technical nature. “The IBM case could raise conflict of law issues between the EPO and the member states of the EU,” he said.

“This could create a significant conflict,” agreed Thomas Vinje, a partner at San Francisco-based law firm Morrison & Foerster LLP, but he added that the EPO appeals board “doesn’t speak for member states, so national courts might not consider its case law.” Vinje said the differing approaches to software patents on either side of the Atlantic might not be as great as they seem. “Don’t overstate those differences. The United States has not written the final chapter on this.

“There are moves in Congress to cut back on patent protection for business methods. The situation is not clear in the United States yet, either.”

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