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European software patent law: another fine mess
Posted by Arnoud Engelfriet | 24 Aug 2009
The European law surrounding software patents is a 30-year row that isn't going to go away soon
Apart from the question "which source code editor is better?", few issues get a more heated reception among software engineers than whether software should be patentable, writes legal expert Arnoud Engelfriet. This is particularly true in Europe, where the 1978 European Patent Convention (EPC) explicitly forbids patents on "computer programs as such".
But judicial decisions from the European Patent Office (EPO) and a failed attempt at European legislation have turned this short phrase into a legal quagmire that is unlikely to be resolved any time soon.
Nowhere is this more evident than the UK where the Intellectual Property Office (UKIPO) has just been forced to clarify its position on the patentability of computer programs following a court ruling on a patent applied for by mobile phone software company Symbian.
The application was concerning an indexing process that would help the mobile devices it runs on to work faster and more reliably. The UKIPO refused the application, saying it was a computer program "as such" as defined by the EPC. But the Court of Appeal ruled that the Symbian invention made a clear technical contribution to the operation of a device running it and, under the current interpretation of the law, was therefore patentable.
That, in a nutshell, is the most contentious issue: when does a software program make a technical contribution to the computer it runs on?
Software patent muddle
How did European software patent law get into this muddle? In the 1970s, when the EPC was being drafted, a major concern was whether the novelty and inventiveness of inventions could be assessed properly and so the exclusion on "software as such" was born.
In the early days any patent applications remotely related to software were routinely rejected but, from the mid1980s, the EPO's approach changed and an innovation could be patented as long as they were integral to a computer or device that benefited from it.
Then in 1998 the EPO came up with a groundbreaking interpretation and decided that patents on software were possible, provided it somehow realised a specific technical result. Just in time for the ecommerce hype, the decision caused a massive boom in the number of softwarerelated European patents. But national courts didn't always follow the EPO line, causing confusion.
To try to settle the issue, in 2002 the European Commission proposed a directive to define when "computerimplemented inventions" would be patentable. The initial text codified the EPO's 1998 interpretation and attracted little attention until open standards groups got wind of it.
Shady backroom deals and public rows
Intensive lobbying convinced the European Parliament to turn the Directive on its head: any invention involving data processing would now be excluded from patentability regardless of its technological nature. But this, in turn, caused an outcry from many European software patent holders.
Further lobbying from both sides culminated in various ineffective proposals, email bombardments to MEPs, mutual accusations of shady back room deals and national parliaments publicly fighting with their ministers. In July 2005, the European Parliament completely scrapped the directive.
Where do we stand now? The Symbian ruling in the UK shows the issue is still contentious. The EPO's Board of Appeals is due to revisit the software patent issue this year, but is unlikely to come up with a fundamental change in policy and no European politician is going to touch such a controversial issue for the foreseeable future.
If you want to find out why, just go to your software engineers and ask them, "We're going to support software patents, what do you think?"
Arnoud Engelfriet, an IT lawyer and European patent attorney, is an associate at ICTRecht legal services in the Netherlands. In 2005, while working for Royal Philips, he was involved in the software patent debate surrounding the EU patent directive and has the mental scars to prove it.
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