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Software patent rules tightened up
Software must have "a definite technical impact upon a machine" to get a patent - unless you're in the US...

By Joey Gardiner

Published: Thursday 21 February 2002

Europe and the US remain as divided as ever over the granting of software patents, with the European Commission having just published its long-awaited proposals on the issue.

They confirm the European Union's position as starkly opposed to the US, which has a history of being far more liberal in granting patents.

In the proposals, which were published yesterday, the Commission said it will only issue patents where the software has a definite technical impact upon a machine.

This means the EC will not allow software patents which are really business processes, or computer programs in general.

US patent officials have received much criticism from Europe in recent years over the granting of very broad patents, which some say are simply used by companies to crush competition rather than protecting real inventions.

In the most famous example, Amazon.com patented its one-click buying system, and is fighting to prevent competitor Barnes and Noble from using something similar. Many say this takes the patent system too far, as there is no real invention there - it is simply a business process.

In its proposals, the EC said the intellectual property of software code is covered already by copyright law. Only software where a "technical contribution" is made will now be eligible for a patent.

The EC defines "technical contribution" as, for example, an invention to speed up processing in a PC, or a program to control an X-ray machine while under conflicting operational requirements.

Experts say the proposals could be law within the EU sometime in the next two years.

George Godar, head of intellectual property for law firm DLA, said the proposals were a way of cementing the status quo in Europe.

"This proposal is about harmonisation within the EU - they are trying to achieve consistency in the way patents are judged in different countries," he said.

However, he said the move will not affect the US position on software patents, and business process patents.

He said: "This will have very little impact on the international debate about software patents, which is happening at a higher level. As far as I am aware all the countries still have very different views."