April 28, 2003 10:02 AM PDT

Scientists protest EU software patents

A group of high-ranking scientists is petitioning the European Parliament to prevent the patenting of algorithms and software ideas, the latest twist in the European Commission's attempts to create a unified patent regime for member states.

The petition, signed by scientists from around Europe, was delivered Monday, ahead of a vote by the European Parliamentary Committee on Legal Affairs and the Internal Market (JURI), which is the latest committee to examine the commission's patent proposal.

The fate of the proposed patent plan could have a dramatic effect on the way software is developed in the EU, with many developers and small businesses fearing a U.S.-style system in which large companies with thousands of software-related patents are able to force smaller competitors to pay for intellectual property licenses.

Thirty-one scientists, including three from Britain, signed the petition earlier this month, criticizing the proposal and demanding that the European parliament adopt a text that would "make impossible, clearly, for today and tomorrow, any patenting of the underlying ideas of software (or algorithms), of information processing methods, of representations of information and data, and of interaction between human beings and computers."

Various EU parliamentary committees are currently in the midst of a long process of reviewing the Commission's proposed directive on the "patentability of computer-implemented inventions," aimed at creating an EU-wide regime that would place ultimate authority for patent disputes under the European Court of Justice, rather than with member states' court systems, as is the case today.

Supporters of the proposal say that the current system has allowed too much divergence between member states' interpretation of EU patent law, while also permitting too much ambiguity over what sorts of computer-related patents are allowed under the law.

IT 'oligopolies'
Opponents, however, say that the directive leans too far in the direction of allowing software ideas and algorithms to be patented.

In the petition, the scientists said that the practice of the European Patent Office (EPO) over the past few years of granting patents for some "algorithms, software ideas, data structures and information processing methods" was an "abuse" that would be presented as the status quo by the current patent proposal. "In fact, this is a considerable extension of scope of patentability, in breach of the spirit of the European Patent Convention that excludes from patentability mathematical methods, computer programs and presentations of information," the petition said.

The European Patent Convention states that a computer program or business method "as such" may not be patented. However, lawyers say that it is unclear from the EPO's recent case law what exactly can be defined as a computer program, as opposed, for example, to an invention that uses a computer as one component.

Those rallying against software patents, including the petitioning scientists and the 143,000 people who have so far signed a similar petition organized by the EuroLinux Alliance, fear that an increasing number of software-related patents will increase the sway of large patent-holding companies over small software developers. "(Software patents) would be not only useless, but also extremely harmful, because they would cast in concrete the so-powerful oligopolies that naturally emerge in information-based industries," the petition said.

Such a system already exists in the United States, where the patent office has a liberal patent-granting policy, and to a large extent leaves the court system to determine whether patents are enforceable, according to legal experts. Since smaller companies usually do not have the funds to fight against patent claims in court, they tend to pay royalties instead, experts said.

Recent patent controversies in the United States have centered on Web site cookies, online ads and Web site navigation.

Open-source leader Richard Stallman in a speech last year said the logic behind the U.S. software patents regime would have forced Beethoven to pay Mozart for the right to create a new symphony.

Protests "premature"
However, the notion that the EU is heading for a U.S.-style system is flawed, according to some intellectual property law experts. "We are not going down the U.S. route, I don't see that happening," said Alex Batteson, a lawyer at Bristows. "It's premature to come to any conclusion about where this is going."

He said that the proposal could undergo major revisions before it appears in the form of a draft regulation, and the entire proposal could even be dropped.

Previous parliamentary committee votes on the commission's proposal have been critical of any move to liberalize software patents. The Committee on Culture, Youth, Education, the Media and Sport argued that such patents could exacerbate the divide between countries in the northern and southern hemispheres, with northern countries already holding 97 percent of recognized patents.

The Committee on Industry, External Trade, Research and Energy argued that "despite the Commission's claims, (the proposal) paves the way to a broader use of patents as a model for protecting computer software," and argued that, if adopted, the directive "should be strictly limited to unequivocal cases where any adverse effects would not jeopardize the usefulness of the protection."

JURI, on the other hand, appears to be in favor of the proposal, according to lobbying group European Digital Rights.

The European Parliament is organizing a hearing for small and medium-sized companies to discuss the patents issue on May 8. EuroLinux and Foundation for a Free Information Infrastructure (FFII) are organizing a conference on May 7 to coincide with the hearings.

There is no set date for when the proposal could become a draft regulation.

ZDNet UK's Matthew Broersma reported from London .

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