EU unveils new criteria to grant software patent

David Lawsky

BRUSSELS: The European Commission on Wednesday unveiled a new approach to
software patents, which a top Commission official said would draw criticism from
the US because Europe would have tougher criteria to grant a patent.

The proposal, which would standardise a hodge-podge of software patent rules
across the 15-member bloc, requires that software contain new ideas to qualify
for patent protection. Also, patents would apply only when software is loaded in
a machine or operating, not when it merely sits on a shelf.

Commissioner Frits Bolkestein, whose Internal Markets group oversaw the new
proposal, said the proposal differs from the American approach, which permits
patents for software independent of machines and requires no innovation.

"We will take American complaints on the chin," he predicted.

Bolkestein's presentation opens the debate on the proposal, which is certain
to face amendment in order to win the needed approval from the European
Parliament and its member states.

Bolkestein rejected the US position, which he said includes the patenting of
business methods. "There should be an inventive step which is not obvious
to people who are familiar with the field," Bolkestein said at a news
conference. "It really must be a novelty."

But he also discarded the view at the other end of the spectrum that software
should be openly available with little or no protection.

Two extremes

"The Commission has had to steer between those two extremes,"
Bolkestein said.

The Commission's position offers no sanctuary from the law to would-be
software pirates.

Commission officials were quick to say that software transmitted over the
Internet or published would continue to be protected under copyright law.
Patents provide an absolute 20-year monopoly, which the owner can exploit for
commercial advantage. Copyright provides a lesser form of protection, which runs
far longer.

The Commission proposal is certain to face changes as it considered by the
European Parliament. "What is important to realise is that the Commission's
proposal is only the start of the debate," said Thomas Tindemans, the
European political affairs expert for the law firm White & Case in Brussels.

"It's going to be amended for sure, but which way the amendments will go
is difficult to predict," he added.

Tindemans and a colleague said there is certain to be heavy lobbying by the
US software industry, which will want the higher level of protection offered in
the United States.

But they noted that patents such as that granted to Amazon.com for its
controversial "one-click" Internet shopping system, which critics say
is a business method, not an innovation, have raised concerns in the US and
Europe.

"The question is, 'How sympathetic will the Parliament be to the US
industry on that particular issue?'", said Mark Powell of White & Case.
The Parliament and EU member states must agree on the final wording before it
can take effect.

Microsoft Corp., which makes the operating system software used on nearly all
personal computers and dominates the market for PC word processors, had no
immediate comment on the proposal. Nor did a trade group, the Business Software
Alliance.