Open Source leaders plead for Europe to revise new patent Directive

By Matt Whipp

Posted on 23 Nov 2004 at 15:34

European leaders of Open Source software have appealed to the European Council not to rubber-stamp a Directive that would legalise software patents in Europe.

Linus Torvalds, the founder of the Linux operating system, Michael Widenius of the Open Source database MySQL and Rasmus Lerdorf behind the widely used PHP server-side scripting language, have published a letter urging members of the European Council to exclude software as patentable from a new patent Directive on 'computer-implemented' inventions.

'The political decision on the patentability of software should be based on merits, economic logic and ethical considerations, not on whatever may have been the practice of the patent system in recent years,' they write.

The current draft of the Directive fails to exert proper controls that would prevent the patenting of general software ideas and business processes, such as one-click shopping. The Open Source triumvirate describe the current version as 'a compilation of the entirety of the excuses with which the patent system has, for many years, been circumventing article 52 of the European Patent Convention in order to grant patents on software ideas'.

They also urge the Council to heed the fact that following Poland's withdrawal of support for the current draft last week, it no longer has the majority approval it needs to be ratified.

Ultimately, the leaders fear that allowing software patents would damage the European economy. By potentially raising the risk of developing software because of the consequences of inadvertently infringing patents, software companies may decide that they can't afford the risk of developing new innovative software. Additionally, building up the portfolio of patents required to engage in cross-licensing or to make other patent holders think twice before litigating against you requires the kind of funding out of reach to most small and medium sized businesses.

Furthermore, patents tend to belong to companies rather than individuals and can be bought and sold. This means that a software developer to whom a patent is issued may later no longer be able to use their own invention if they change jobs, for example.

'Copyright serves software authors while patents potentially deprive them of their own independent creations. Copyright is fair because it is equally available to all. A software patent regime would establish the law of the strong, and ultimately create more injustice than justice,' they write.

The UK patent office supports the current draft of the proposed Directive that allows software to be patented when making a 'technical contribution'. That is, software that improves the control of a robot arm would be patentable, whereas an accounting package would not.

The office says Europe needs a patent Directive to avoid being drawn into the more liberal patenting system of the US, where any application that makes a 'useful, concrete and tangible contribution,' can be patented. Patents are also needed because while copyright offers protection from copying of the 'source and object code,' there is nothing to prevent a rival arriving at the same solution by developing a product entirely independently.

However, patent expert Greg Aharonian said that the arguments are twisted. Despite the UK maintaining the need for patent law to avoid a descent towards US style litigation, there will be little to choose between them.

'One big reason the US has such a liberal software patent regime is that the US court pretty much rendered software copyright impotent. The funny thing is that a few key UK software copyright court decisions (such as Richardson v. Flanders) rely on the US caselaw,' he wrote in a recent patnews newsletter.