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12.21.08

Patents Roundup (Europe): Confusion and Lobbying

Posted in Europe, Patents at 10:05 am by Dr. Roy Schestowitz

Software patents protest against EPO

A FEW DAYS AGO we saw Microsoft and its fronts lobbying Europe to permit software patents inside standards and not to favour Free/open source software. Digital Majority has accumulated and highlighted some more bits of text from what was available. It can be found in:

All the usual suspects are lobbying for software patents, even inside so-called ‘standards’ (that only those who are rich are allowed to implement).

Also new from Europe is this list of 10 myths about the European patent system.

Myth 1: “The European patent system works well. Het European Patent Office is leading in a policy to prevent the adoption of undesired American elements into European patent law “.

Reality: The European patent system is becoming more an more a burden for firms. There is undeniably a tendency to follow the United States.

Myth 2: “Patents are indispensable for innovation – now more than ever.”

Reality: Occasional success stories are actually exceptions that proves the rule. The patent system moves competition from the market to the courtroom.

[...]

Over in the UK, where Symbian/Nokia did its damage, the consequences are not entirely clear yet and an important referral still pending [1, 2]. This results in a state of uncertainty.

The UK’s Intellectual Property Office (IPO) will still use a previously formulated test on software patents despite a court ruling which many took to be critical of its approach.

The Chartered Institute of Patent Attorneys (CIPA) has said that the IPO’s guidance could cause uncertainty and increase the cost of doing business in the software industry.

[...]

Many observers saw the ruling as a rejection of the IPO’s previous methods of judging software patent claims. The IPO has said, though, that it will continue to apply the Aerotel/Macrossan test to decide whether an invention qualifies for a patent.

[...]

The Symbian software was allowed a patent by the Court of Appeal because it improved the operation of the software in a mobile phone, which the court said meant that it had a technical effect.

The UKIPO is apparently almost ignoring what happened there with Symbian, unlike the Bilski case, which we’ll refer to in the next post.

Back in October, we were disappointed by a UK court ruling that effectively told the UK’s Patent Office that it had to stop rejecting software patents outright, and instead consider software patentable if it met certain criteria. Given the widespread evidence that software patents have done plenty of harm, and almost nothing to help the software industry, this is generally disappointing. However, it looks like the UK patent office may be trying to do its best to ignore the implications of the court ruling.

The patent system/s in Europe must resolve ambiguities — and fast! In the mean time, some are exploiting the confusion.

“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway”.”

Marshall Phelps, Microsoft

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