Monday, April 25, 2005

EU SOFTWARE PATENT DIRECTIVE: In my (many) discussions with clients and fellow practitioners regarding the EU software directive, I'm surprised to see how much the hysteria over the directive has permeated the reporting on the topic. Specifically, many people that are opposed to the directive always seem to manage to get in a "money quote" into an article that completely distorts what is being accomplished in the EU. Examples of such quotes are:

"They're trying to import the failed US Patent system to Europe",

"Innovation will die, and so will the rest of you once the EU begins allowing software patents",

"My company will be forced to immediately declare bankruptcy once software patents are allowed",

and so on. The truth of the matter is that a new category of software patents isn't being "created" in the EU. Rather, the EU is trying to harmonize existing patent practice, warts 'n all, so that software patents issued from the EU Patent Office will be treated the same way in each participating country's jurisdiction.

This has been pointed out in various commentaries over the last few months. Nevertheless, the latest edition of IP Law & Practice has a great article that chronicles the directive, and the various political mis-steps that occurred along the way:

In 2002 the European Commission--one of the three legislative institutions of the European Union--decided that the patent situation in Europe needed clarification. Software-related patents were issuing under a single set of rules followed by the Munich-based European Patent Office, but when courts ruled on a patent's validity, they followed national law, which varies from country to country. The law didn't vary much, and there hadn't been any major conflicting opinions, but there was the potential for them--and that troubled the commission. It figured that by introducing a uniform law that mimicked the EPO's rules it could, in effect, douse a fire that hadn't yet started.

The plan was simple--until it backfired. To the dismay of the Commission, and pro-patent advocates like Frain, the status of European software patents is now more unsettled--and more precarious--than ever. "Three years ago, there was a wrinkle
in the system," says Frain. "Today practitioners don't have a clue as to what is patentable and what isn't."

It's a good article, worthy of a read.

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