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Last Updated: Thursday, 23 December 2004, 15:10 GMT
How patents protect innovation
Simon Gentry of the Campaign for Creativity and Joff Wild, Editor of Intellectual Asset Management magazine take issue with technology analyst Bill Thompson's recent column in which he argued that a new European directive could put software writers at risk of legal action.

Man using computer
The directive applies to computer implemented inventions
As someone who clearly believes passionately in innovation, Bill Thompson should take the time to read the draft European Directive on Computer Implemented Inventions.

If he does, he will see that, far from being a charter designed to allow American multinationals to run roughshod over the rights of small European companies, its effect will be to even up a playing field that at the moment is heavily skewed in favour of the strong and the rich.

To start with, let us be clear about one thing. This is not a directive that would allow pure software patents.

In fact, it explicitly forbids them. Instead, it offers patent protection to inventions that use software to achieve their effect, in other words, computer implemented inventions.

And, to reassure Bill even further, this is nothing new in Europe. So far, thousands of such inventions have been given patent protection by the European Patent Office.

'Uncertainty and confusion'

So why the need for a Directive? Basically, the wording of the current legislation is ambiguous.

By providing legal certainty, the aim of the Directive is to provide a level playing field on which European companies can have the confidence to seek patent protection for their inventions.
It seems to say that computer implemented inventions are both acceptable and unacceptable at the same time.

Such ambiguity causes uncertainty and confusion. The result being that of those thousands of computer implemented inventions so far granted patent protection in Europe, more than 50% are owned by US companies, businesses that are far better versed in patent law and strategy than their European counterparts.

By providing legal certainty, the aim of the Directive is to provide a level playing field on which European companies can have the confidence to seek patent protection for their inventions.

The alternative to the Directive, of course, is not the abolition of patents for computer implemented inventions, but a continuation of the current situation, which is heavily weighted in favour of those big multinationals that Bill is so worried about.

So are people increasingly supportive of the legislation? Basically because, though they can live with the current system, they prefer the certainty that the Directive would bring.

It would make their lives simpler too. This directive will help all parts of the European hi-tech industry.

This is why organisations such as EICTA, which represents 10,000 companies, employing millions of Europeans in the communications technology and consumer electronics industries, are so supportive of the legislation.

EICTA argued in November that if the Directive were not approved the consequences could be catastrophic, warning of potentially thousands of job losses.

Is this really what Bill wants?

'Good for innovators'

The fact is that without patent protection, the very companies Bill claims to be so concerned will be extremely vulnerable.

The law will create legal certainty by laying out exactly what can and cannot be patented
Any predator who likes the look of what a start-up has spent time and money in developing will be able to appropriate the technology, use it in its own products without having to face any legal consequences.

In such cases copyright law is basically useless, as it requires exact and deliberate copying be proved. In the real world, any predator with even an ounce of intelligence can get round this. And many do every single year.

By contrast, patent protection gives the innovator much greater security, as well as the means to attract the investment needed to take products to market - something that is crucial to all small businesses.

However, patents do not give anyone a product monopoly. As for open source, that is very easily dealt with. It is thriving in the US. If what Bill says about the consequences of continued patentability is true, how on earth is this possible?

Finally, we come to the politics. Bill claims that the Directive will be pushed through without due process. This is incorrect.

The document he complains about is only the opinion of the 25 EU governments. This opinion will go to the European Parliament, which will then consider it for three months before giving its view.

At no stage has the Parliament rejected the law. In its first reading, which took place in September 2003, it suggested a number of amendments.

The governments have taken on board nearly half of these in their opinion. That is how decision-making in Europe works.

All 25 governments have had ample time over two years to object to the Directive. A majority have decided to support it.

If it were otherwise, the Directive could not be approved.

The law will create legal certainty by laying out exactly what can and cannot be patented.

With this certainty, the software industry in Europe will be much better equipped to take on the challenges presented by a global market that is currently dominated by the US.

Surely that is something all of us support.

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