Patents. Still pending

The EU's attempt to harmonise patent law is in a mess

TO QUALIFY for a patent, an invention must advance the state of the art. Alas, the same test does not apply when approving reforms to Europe's patent policies themselves. This week the European Union's Council of Ministers failed to agree on one important proposal, and accepted another that may actually undermine rather than foster innovation.

The first proposal was for a “Community Patent”. Its aim was to simplify the application process by making any patent awarded by the European Patent Office valid across all 25 EU nations, without having to be fully translated into all of the EU's 20 official languages. (The cost of translation makes getting a patent in Europe far more expensive than in, say, America.) This would have created broad patent-protection and cut costs for inventors. But some countries objected to this loosening of the rules, splitting the council - so after four years of negotiations and three decades of debate, the proposal is dead.

A second initiative was a directive to harmonise national rules on software patents. The matter is controversial because the intellectual property of software is typically protected through copyright. This prohibits plagiarising code, but allows competitors to devise different code that achieves the same end. Patent law, in contrast, outlaws any other software that achieves the same effect, no matter how. Dubious software patents abound: the best-known example is the American patent awarded in 1999 to Amazon for the “one-click” shopping model used at its online store.

Although software patents are already allowed in most European countries, they are awarded and enforced unevenly. The Council of Ministers approved the draft directive, but, crucially, in a form that lacked amendments made by the European Parliament last September that restricted its scope. The two versions thus differ greatly, reflecting two sides of a polarised debate. The council favours software patents, a boon to big technology firms and intellectual-property holders. The parliament opposes software patents, and generally favours smaller firms and open-source software developers. From here, the directive will grind through the EU bureaucracy, getting tweaked along the way. It will be at least a year before it comes to a final vote, assuming it gets that far.

Clearly there may be cases where a better digital mousetrap is worthy of a patent. But if software patents are too easy to obtain, they may stifle innovation more than promote it. Europe needs tougher standards governing their approval (and perhaps shorter terms of protection). As for creating a Europe-wide patent, like a common currency it would be of great benefit to industry - so, recent difficulties notwithstanding, the effort should be renewed.

The EU's attempt to harmonise patent law is in a mess.

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