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net.wars: who patented clarity?

What with one excitement and another (the passage of the ID card in the Commons, its rejection by the Lords – ping-pong fun for everyone!), net.wars has so far not gotten  around to mentioning the re-emergence of the threat of software patents in Europe. What, you missed the threat? It's all here!

To be sure, it doesn't sound like that's what's happening when you read the announcement, which nowhere mentions patents on software, burbling instead about competitiveness and harmonisation. You have until March 31 to submit comments

Campaigners are not necessarily overreacting when they warn that this is the next attempt to bring in software patents, after their  comprehensive defeat in the European Parliament on July 6, 2005, 648-14. And despite given the statement by Charlie McCreevy, commissioner for the Internal Market (and a dedicated pro-software patents guy) that the European Commission would not propose a new directive if the European Parliament killed that one. All the language that talks about harmonisation is the key: the European Patent Office and the UK Patent Office are the most liberal in Europe when it comes to awarding patents on software. Will Europe harmonise on their practice, or on that of one of the countries (most notably Germany) that takes a harder line in insisting that new technology is only worthy of a patent if it has an effect on the physical world?  The EPO's known liberal granting of software patents is the thing that alarms the  FFII (Foundation for a Free Information Infrastructure) about the EC's proposals.

Of course, the UK Patent Office has always denied wanting software patents; what its spokesmen say they want is "clarity in the law". They are not alone: in a recent report on software patents,  Ovum senior researcher Gary Barnett noted that a lot of people he talked to want clarity: the lack of it favours the biggest lawyers. Barnett, who called pure software and business method patents "foolish and dangerous" also quoted 1998 research showing that as many as two-thirds of software-related patents are ultimately ruled invalid when tested in court.

Software patents aside, a lot of what's being suggested in the consultation document makes some sense. For example, one of the biggest imbalances of the European patent system as it exists now is that while you can get a patent from the EPO that is valid in all EU countries, it's valid because each national patent office issues a patent. But you can only get the patent overturned or enforced at the national level, so if you want an EPO-issued patent voided or if you want to pursue an infringer Europe-wide, you must file court proceedings in every EU country. That is prohibitively expensive for all but the biggest companies. It does little to protect the individual inventors the patent system is supposed to help.

One of the proposals in the consultation document, therefore, is the creation of a single European Patent Court, which would have jurisdiction over the validity of European Patents. While you have to suspect that the national patent offices won't like seeing some of their hegemony vanish, for people who have an interest in seeing bad or over broad patents overturned this has to be a good idea. As long, of course, as the proposed court does not turn into a rubber stamp, which is what the FFII fears.

One thing is certain: the current patent system is broken, at least regarding software. Unless you are going to say – as, of course, some people do – that no patents should be allowed, ever, the current system has to be modified or adapted somehow. It is tempting but of course ludicrous to think of passing a law automatically voiding all software patents, partly because you'd have to assign people to review the tens of thousands of patents involving software that have been awarded in the EU, but mostly because you would be in the same boat the EU is in now: what is a software patent?

The law does need clarity. The problem is, whose? And is the lack of clarity in the law or in practice?

It is never easy to draft legislation that defines anything as intangible as software. The German definition – that there must be an effect on the physical world – is probably a good place to start. It certainly seems intrinsically anti-consumer to me to allow companies to patent anything as broad as how an interface looks and feels, how a cursor moves around the screen, or a set of menu choices (all of which have been the subject of patent disputes before now). Standardisation on those sorts of things has been important in fuelling the mass market for computers. Supposing, for example, someone had been allowed to patent F1 for Help.

It seems to me that clarifying what defines a software patent is the first question that the EU needs to answer before trying to figure out who gets to use that clarity to issue and/or void patents. In addition, if the claim made by anti-software-patent campaigners is correct and the EPO really has been breaking EU law in issuing software patents, then surely the first step ought to be to force it to bring its practice into line with the law. There is something intrinsically wrong with handing over full control to an organisation you can't trust to behave according to democratic principles. <1/>