Criticism of US Approach Judge Jacob spoke in London at a seminar for the Society for Computers and Law earlier this month, and has criticized the U.S. for allowing “anything under the sun” to be patented.
Judge Jacob spoke in London at a seminar for the Society for Computers and Law earlier this month, and has criticized the U.S. for allowing “anything under the sun” to be patented. The US regularly grants patents for software. The Europeans tend to view software inventions as essentially applying algorithms to inputs to generate outputs, and, thus lacking in inventive step. The European Approach tends to provide software protection by copyright, which on the one hand does not require costly active measures to protect, but does not provide the same width of protection, as the copyright protector has no claims against a different solution to the same problem, or an independently developed solution.
Criticism of Europe Despite the guidelines against software patents, the European Patent Office (EPO) has granted some 20-30,000 software patents to date.
Despite the guidelines against software patents, the European Patent Office (EPO) has granted some 20-30,000 software patents to date. Proposed European Legislation for software patents has generated a tremendous reaction. At the time of writing nearly half a million people have signed a petition to the European Parliament and to the European Council campaigning for a Software Patent Free Europe. The petition may be signed at http://petition.eurolinux.org
The European Commission has funded a study on the legal, technical and economic effects of software patents on innovation, but the study is not due to be finished until 2007.
Last year, the European Parliament rejected the directive on the patentability of computer-implemented inventions, which became widely known as the software patent directive. Many claimed that this directive could lead to the widespread patenting of software, as is the case in the U.S.
The problem of Examining Software Patents An estimated 90% of software patents granted by the US Patent Office (USPTO) wouldn’t stand up in court because of the existence of prior art. In Europe the statistics are little better.
An estimated 90% of software patents granted by the US Patent Office (USPTO) wouldn’t stand up in court because of the existence of prior art. In Europe the statistics are little better. Why is this so? -Unlike mechanical devices, where components are referred to by standard names, and Figures are engineering plans, software tends to be documented as flowcharts and block diagrams with little standardization of terminology, particularly in rapidly developing fields.
Due to the speed with which the computer industry develops as compared to traditional manufacturing, the prior art is not properly classified and catalogued.
The USPTO tends to confine prior art searches to their own databases, and forget that innovation occurs in other countries as well. Criticism of the U.S. patent system has come from computer giants as well. On January 9, 2006 IBM has said that it will participate in a number of initiatives to improve patent quality, and, in developments that money computer programmers will view somewhat cynically, Microsoft, has also called for patent reform.
There is a danger that holders of invalid patents can successfully threaten their competitors, and large organizations can bully smaller ones, since the innovative start up cannot face the cost of a lawsuit, which in the US, will cost upwards of a $1,000,000 to fight.
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