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Last Updated: Friday, 15 July 2005, 10:42 GMT 11:42 UK
Patents: gone but not forgotten
Don't be too hasty in assuming that software patents have gone away in Europe, warns Bill Thompson.

Protestors in Strasbourg, AFP/Getty
Protestors opposed the EU law on software patents
When Pyrrhus surveyed the battlefield after the Battle of Asculum in 279 BC Plutarch reports that he told his generals: "Another such victory over the Romans, and we are undone".

It may be that the campaigners against software patents in Europe achieved their own Pyrrhic victory last week when the European Parliament voted by 648 to 14 to reject the proposed directive on Computer Implemented Inventions.

Because now the decision on whether to grant a patent on a particular invention will be left to national patent offices as before, and they have differing interpretations of the European Patent Convention of 1973 which is supposed to lay down uniform rules about what is patentable and what not.

They have also shown a willingness over the years to grant patents on software, such as the patent for a "coding system for reducing redundancy" in files that was granted in 2002 and meant the JPEG graphics standard was no longer an open, international standard.

Big business

Instead of accepting a series of amendments to the directive put forward by MEPs including Michel Rocard, Jerzy Buzek and Andrew Duff, who represents me here in Cambridge, the Parliament threw out the proposed directive.

It is unlikely that the Commission will reintroduce it.

Apologists for the plans, including lobbyists like Simon Gentry and his "Campaign for Creativity", claim that the original text explicitly excluded pure software patents from consideration, but careful analysis of the wording of the directive makes it clear that this is not the case.

Bill Thompson
We can't always rely for our freedoms on the failures of our opponents - there comes a point where guarantees backed by the rule of law are the only effective measure.
Bill Thompson
In fact there is a compelling argument that one reason the patent offices supported it was that it would legitimise the hundreds of patents on pure software inventions that they have already granted.

Groups campaigning against software patents, like the Foundation for a Free Information Infrastructure, supported the amendments because they would have built guarantees into the law.

So it may be that Microsoft and the other companies who supported the directive in its un-amended form will be happier with no change.

They can afford to apply for patents in several countries and they know how to manipulate the existing rules to their advantage.

In the US, where software patents are common, large companies trade patent portfolios and cross-license them freely so they do not really have to worry about being accused of infringement.

They can also afford to do the expensive research into other people's patents that this requires.

It is smaller developers who suffer, and who would have suffered if US-style rules were applied in Europe.

They include people like David Howes, whose small company Textpression is working on GUI-based programming languages and who already fears a nasty lawyergram from a patent holder as soon as he releases a beta of his code.

Striking a balance

The patent system works well in many areas, and I don't want to see it abolished or overturned, but it is not appropriate for areas like software.

Patents are there to protect inventions, not ideas, just as copyright is there to protect an expression of creativity not the idea behind it.

Screengrab of JPEG files, BBC
One patent covers the JPEG way of codifying images
Software doesn't work like other areas of human endeavour, and a patent system that works well for concrete inventions simply cannot address it adequately.

And since patents, like other forms of intellectual property law, are supposed to offer a balance between public good and the benefit to the inventor, it's reasonable to say that the public good that comes from patenting software is so small that there is no reason to cut a deal.

Persuading the European Parliament that the directive was flawed and would result in catastrophic damage to smaller-scale software development and the open source movement in Europe was a massive triumph for Rufus Pollock and the rest of the campaigners.

But perhaps it is it too great a victory.

It will be hard to motivate campaigners against the next attempt to unify patent law across Europe; it will be hard to keep MEPs sufficiently interested and educated about the issues to ensure that new regulations don't go through unnoticed; and it leaves the patent offices of individual countries in charge.

So far the opponents of software patents in Europe have been on the defensive.

Maybe they should be talking to their new friends in the parliament about putting forward a new directive, one written from their perspective but which could gain widespread support.

Building consensus and achieving compromise isn't easy, and it isn't as much fun as demonstrating and organising petitions, but it might be the way forward.

We can't always rely for our freedoms on the failures of our opponents - there comes a point where guarantees backed by the rule of law are the only effective measure. This may be one of those moments.

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

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