Software patent loopholes have grown, say campaigners

A key vote on the directive on the software patent directive has not only left loopholes in the legislation intact but may have even widened them, say campaigners.

Amendments to the EU's directive on the patentability of computer-implemented inventions, which would have prevented companies taking out pure software patents, were largely thrown out by the European parliament legal affairs committee (JURI) at a key vote on Monday night.

The Foundation for a Free Information Infrastructure (FFII), a group campaigning against software patents, said the only amendments to the directive that were passed have symbolic value only: for instance, replacing the term 'computer-implemented invention' with 'computer-aided invention'.

One moderate signal against software patents that was adopted, said the FFII, was an amendment that equates 'technical' with 'applied natural science'. "The new definition for 'technical contribution' is a step in the right direction," said the group. "But contains a serious error in that it defines as everything which is new compared to the state of the art by definition as 'technical'."

Green MEPs Eva Lichtenberger and Monica Frassoni issued a statement saying that although all parties involved in the directive claim to be opposed to software patents, the legal uncertainty created by the directive will merely serve to allow them through.

The two MEPs said: "Though all political groups claim that they want to exclude 'pure' software patents from the directive, the pro-big-business majority in the committee succeeded in creating dangerous loopholes.

"A definition of the difference between software and technique, for example, says that software can be considered to be the novel feature in an invention, and thus is patentable."

They said the current form of the directive will "give big business the opportunity - with the help of well-paid patent lawyers - to sew up the European market and throw out smaller players."

The proposals, which were drafted by JURI's own rapporteur, Michel Rocard, would have made it clear that innovations can only be patented if they use software to aid the performance of the invention and not if they comprise software only.

Rules on interoperability also came in for a roasting. The FFII, which cites these among the worst Council articles, said: "Patents on techniques required for interoperability are kept under RAND (Reasonable And Non-Discriminatory) conditions, so the line ensuring that actions for the purpose of interoperability are always allowed is dropped."

Eva Lichtenberger and Monica Frassoni said the definition is tailor-made to give companies "the possibility of earning extra-money on patent fees if someone else decides to construct interoperable technical devices".

Some of the proposed amendments revert to the changes introduced by the European parliament in the first reading, which were later removed by the EU Council. This includes a change to make it clear that innovations in the field of data processing cannot be patented.

The directive will now be voted on by the full parliament, in two weeks' time.

Matt Loney writes for ZDNet UK