Global Software Patent Scrap Continues, EU Restarts Process

The European Parliaments legal affairs committee, called JURI, has voted nearly unanimously to ask for a restart to the process around the European Unions proposed IT patents legislation.

The decision will continue the turmoil over differing software patent law in two of the worlds major technology markets. As U.S. software companies spend millions defending or attacking intellectual property holdings, European vendors are taking advantage of their easier legal climate for software, especially smaller companies and open-source projects.

The vote will almost certainly derail the current proposal for the "directive on the patentability of computer-implemented inventions," or CIIs, which has been widely criticized by open-source advocates. It is backed by groups such as the EICTA (European Information and Communications Technology Industry Association), which lobbies on behalf of such IT giants as Microsoft Corp., Apple Inc., IBM, Hewlett-Packard Co., Dell Inc., Intel Corp., Bull, Nokia Corp. and Ericsson AB.

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Both sides say they oppose U.S.-style software patents. However, the EICTA supports the more liberal patenting regime defined in the current proposal, while its critics say that text would effectively open the floodgates to patents on pure software.

At a meeting on Wednesday, JURI members approved the request for a restart with 19 in favor, two opposed and one abstention. The motion requests the European Commission, the executive branch of the EUs government, to start the legislative process over from the beginning, by either resubmitting its original proposal on IT patents to the European Parliament (originally submitted in February 2002) or submitting a revised proposal.

Most observers agree that in the face of such opposition by MEPs (Members of European Parliament), it is unlikely that the Commission will attempt to press on with the current text, which the Commission agreed on as its Common Position in May 2004.

"We think this was the right decision," said James Heald of the FFII (Foundation for a Free Information Infrastructure), which opposes the current text. "This decision from JURI I hope finally puts a stake through the heart of [the May 2004] text." Dieter Van Uytvanck, president of the FFII Belgium, said the decision was a "victory for democracy."

The Free Software Foundation Europe said it supported JURIs decision, although it would have preferred for the EU Council to have adopted a Common Position that took the European Parliaments opinion into account. "Then it would have been clear that software patents are forbidden. This still leaves us in a grey area," said Bernhard Reiter, German coordinator for the FSF Europe.

Arlene McCarthy, the British MEP who originally guided the directive through the European Parliament, and who supported broader IT patentability, also gave the decision a nod. Under the current circumstances, a restart is the best solution, she said.

The EICTA said it was still reviewing the situation, but it has consistently supported the May 2004 text calling for broader patentability and opposed any delay to its adoption.

The EUs patent regime affects companies based elsewhere who want to obtain European versions of patents they already own, according to industry observers. Companies may receive a patent from the U.S. Patent and Trademark Office but may find that different criteria apply for a European patent, especially when it comes to pure software.

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The current unenforceability of software patents also gives European software companies a competitive advantage over their U.S. counterparts, all sides agree. U.S. software companies routinely stockpile thousands of patents that are used mainly to defend themselves from patent lawsuits, but European software companies dont need to bother. The lack of software patent warfare also creates a less hostile environment for smaller software developers and open-source projects, which cant afford to accumulate large patent portfolios.

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