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Last Updated: Monday, 7 June, 2004, 09:09 GMT 10:09 UK
Fight for the right to program
It may not be a cool rallying cry, but technology analyst Bill Thompson wants to keep patents away from software programs.

Hand on keyboard
Punching in the wrong code could land you in court
Elections to the European Parliament take place on 10 June, and we are all being told how much they matter and how important it is to vote.

But anyone who works in the computing industry and most net users could soon be seriously affected by a political deal in Brussels that shows just how little influence the parliament really has.

Last September MEPs voted on a proposal to bring European patent law up to date by letting inventors include computer-based aspects of their inventions.

But before they passed the proposed directive on "the patentability of computer-implemented inventions", they made a number of changes to it.

The most important was that their version made it clear that "inventions involving computer programs which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run shall not be patentable".

This bit of legal jargon meant that Europe had decided not to follow the US and Japan and allow what are usually called 'software patents' - patents on inventions that are implemented entirely in code and do not involve a physical object too.

Copyright vs patents

The European Parliament does not have the power of a national parliament like our own at Westminster, so the proposal then had to be approved by the Council of Ministers, made up of politicians from the EU member states.

Bill Thompson
Allowing software patents in Europe will chill innovation, damage our competitiveness and open programmers and the companies that employ them to legal challenge at every step
Before they could get to it, though, it was overhauled by a working party, which removed almost every change the parliament had made.

And last month, the Council of Ministers passed the new version, after some serious arm-twisting from the Irish government and a last-minute change of heart from Germany.

The new directive clearly allows software to be patented, despite what the parliament said, and it seems likely that it will become European law in the next few months.

This may not seem to matter much. But the mere fact that large companies have been trying to persuade Europe to do this for some years should be enough to alert us to its economic importance.

After all, computer software is already protected by copyright law. Why do Microsoft and IBM want patents too?

The reason is that patents are much stronger than copyright. If I have a patent in something then even if you invent it completely independently, I can stop you using it.

If I sat down today with a blank sheet of paper and came up with an idea for a better lawnmower, it would not help me at all if the same system had already been patented. That is not the case with copyright.

Web inventions

We already allow patents for inventions like cameras, guitars and cars, and some people cannot see what the fuss is about over software patents, but there is a real difference.

Person looking at computer screen
Is the idea of one-click shopping an invention?
Partly it is because patents were created to protect inventions not ideas.

For example, my friend Anne recently wrote a book that features Wallace and Gromit and a 'magic pointing finger'.

On one side of the page are some questions, and you point the finger at one of them. When you put the finger on the other side of the page, it mysteriously points to the right answer.

The arrangement of magnets in the book and the finger are covered by a patent, so that when her publisher wanted to use it they had to ensure they had permission.

That seems reasonable to me, because this is a real invention, one that took skill and effort and is definitely not an obvious thing to do.

Compare that with the US patent which Amazon.com holds on 'one-click shopping'.

If a shopping site wants to keep a record of your credit card and shipping details so that you can buy from them without having to re-enter them every time, then they have to get permission from Amazon, because Amazon holds a patent on this 'business method.'

Yet the 'invention' is both obvious and, to anyone working on the web in the mid-1990s, trivial.

It is also really just an idea, a way of doing something, not a genuine invention.

Lots of us thought of the idea of one-click shopping when we were developing e-commerce sites, Amazon just got to the patent office first.

Patent 'absurdity'

At the moment European sites can ignore US and Japanese software patents, but in a connected world, the law of other countries inevitable influences business decisions even over here.

However, this is an argument for sorting the US system, not just embracing it in all its manifest absurdity.

Allowing software patents in Europe will chill innovation, damage our competitiveness and open programmers and the companies that employ them to legal challenge at every step.

What is worse, patented material may be incorporated into standards, forcing everyone who wants to work with the standard to use, and perhaps pay a license for, the patent.

If Europe accepts these patents then it will become harder to resist this trend.

But the party is not over yet. The new proposal has to be formally endorsed by the Council of Ministers, which shows no signs of having changed its mind.

Then it has to go to the parliament again, and they could throw it out or try again to make sensible changes.

However, it seems very likely that we will get enforceable software patents in Europe.

Then those of us who object to the absurdities of current copyright law will have new laws to defy in our attempts to get our legislators to see sense.

See you in the patents court.


Bill Thompson is a regular commentator on the BBC World Service programme Go Digital.



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