MEP faces flak from software protestors after patents vote

Date: 19/06/03

By Peter Chapman

MEP Arlene McCarthy was caught in a face-off with angry computer programmers this week after deputies backed patent proposals they claimed would strangle the development of new software.

The UK Socialist had just seen the bulk of her report on a complex draft directive adopted despite stiff opposition from some fellow MEPs in the assembly's legal affairs committee.

McCarthy said the vote, if backed by the Parliament's plenary later this year, would give far more legal certainty to businesses by setting common rules governing the way computer programs should be afforded patent protection.

Under the proposals, essentially only computer programs that underpin a genuine invention should benefit from protection.

At the same time, she insisted that the rules would be strict enough to avoid the US-style expansion of patent protection for "inventions" which are, in fact, just smart new business methods.

"Now we have got some legal certainty and security. We have a bit more limited definition of what is patentable.

"Just because it is an innovation does not mean it can be patented - an innovation is not an invention."

McCarthy said she would also call on Single Market Commissioner Frits Bolkestein to bring forward extra proposals to give small firms assistance, such as legal advice, when they make patent applications.

However, a clutch of anti-patent programmers rushed towards the MEP after the vote.

They claimed the law would hurt many smaller firms because it would leave them wide open to a flood of legal action whenever they develop new software.

"Right now, software companies have piles of patent claims in front of them and they still don't know if they must hire lawyers to look into them or not," said Swede Erik Josefsson.

Campaigners said the law could jeopardize the spread of so-called "open source" software, which is free for experts to develop - this includes the likes of Linux, the operating system that is beginning to rival Microsoft's Windows.

One, Dr Luuk van Dijk, a Dutch programmer, told European Voice this is because the law would grant patent protection to the software itself - instead of to the underlying process that the program executes.

This would also negate the MEP's bid to restrict the patentability of business methods, he warned.

"The bottom line is that the idea that a program is an invention was adopted. They also say they don't want business methods. But if you have a program that has a business method then you have let business methods in through the back door."

Crucially, van Dijk said the law would hand big firms that have the financial clout a weapon to exert wholesale patent claims against programmers.

"If you start handing out semi-automatic guns your village will soon become a battlefield. I prefer my neighbours to be armed with wooden sticks."

McCarthy, trailed by fellow Socialist Michael Cashman, hit back, claiming her critics had missed a chance to score a lobbying victory by deliberately freezing her out of public meetings on the issue.

She said there is no evidence that patents hurt the open source sector, which relies more on copyright rules for its legal protection. This was the case in countries such as the US "where you have very liberal patent rules", she added.