Parliament braced for split over software patent plans

Date: 15/05/03

By Peter Chapman

MEPS are set to clash next week on complex computer software patent proposals that could affect the future of the EU's multi-billion euro hi-tech sector.

Arlene McCarthy, rapporteur on the issue for the European Parliament's legal affairs committee, which votes on the proposals on 22 May, broadly supports proposals to harmonize the system for patent applications unveiled last year by Frits Bolkestein, the internal market commissioner.

But some MEPs, including allies of Daniel Cohn-Bendit, co-leader of the Greens/European Free Alliance group, are expected to try to hit the delete button on the proposals, which they claim would lead to an expensive rise in software patents.

Bolkestein wants the EU to fill a legal void which has arisen because computer software developers in some member states can patent their inventions, while their counterparts in others face uncertainty.

This is due to often-conflicting judgements by national courts on patents awarded by the Munich-based European Patent Office (EPO), the non-EU body that currently handles most applications.

Bolkestein believes that software pioneers should be allowed a patent if it meets tough criteria to ensure computer-implemented inventions offer genuinely new technical solutions.

But, crucially, he distanced himself from the much-criticised US system, which has seen an explosion of patenting of business methods, many of which are viewed by Brussels experts as unworthy of protection and an assault on free competition.

Programs failing to underpin a technical invention or software that merely looks attractive or contains new programming ideas would be ineligible for a patent under the Bolkestein-McCarthy formula.

McCarthy, a UK Socialist MEP, said that the current legal uncertainty was a "brake on growth in the industry".

At the same time she warned that, without an EU directive, the Munich-based EPO would be under pressure to grant more patents to less deserving cases.

Cohn-Bendit and 'open source software' campaigners held a public meeting last week followed by a street party outside the European Parliament in Brussels, displaying banners denouncing the threat to personal freedom posed by patents.

In a statement, the Greens warned that patents favour huge US-based companies such as Bill Gates' Microsoft, with its lavish legal departments, at the expense of smaller firms that create most of the innovations in the IT field. They said greater patenting would also jeopardize the development of open-source software such as the Linux operating system, which is currently freely available to programmers to develop.

A coalition of IT companies and business groups including GrowthPlus, a group of 500 of Europe's fastest growing firms, along with bosses lobby UNICE and EICTA, which represents IT, telecoms and consumer electronics firms, insist that amendments in McCarthy's report would guarantee freedom for open source developers. They argue that the European Commission would be obliged to safeguard small firms and the open source software community against unforeseen negative effects.

But the GrowthPlus group said it wanted another change concerning the way patent claims can be made under the new regime.

Under the law, claims for breaches in another member state would be admissible only if someone actually uses a program to operate a piece of hardware or apparatus.

This would make it hard to pursue claims against suppliers helping to cause the patent infringement and create a "cross-border anomaly and distortion in the single market".

The European Parliament will vote on 22 May 2003 on proposals to harmonise the system for software patent applications.