Software Patenting

Topics:

• Future European and woldwide developments On the worldwide level the patent system is reforming and increasing its efficiency. But further safeguards for software development and against institutional failure are required to reduce the collateral damage of the inflexible system which is not ready for dynamical. We will discuss possible initiatives on the national, European and supranational level. Our European activities were echoed by an intense debate in the United States. Companies like Microsoft (see Eolas case) now call for a patent reform. However, the United States export their current legislation through Trade Agreements. Further developing nations put pressure on TRIPs-'harmonisation' and access to knowledge at WIPO. Notably too the Indian Parliament recenty rejected a governmental proposal for software patenting.

• Industrial Copyright

The dichotomy of "copyright for literary creation, patents for technical invention" has visibly broken down due to the appearance of software and the debate about copyrightability vs patentability for software. It is time for an integrated redesign of the intellectual/industrial property (i2p) system. Recent experience shows that industrial copyright comes closer to the requirements than patent law. Future exclusion rights should be fast, cheap and narrow.

• IPRED2 - the last cornerstone of the EURO-DMCA

Remember IPRED 1? It is not implemented yet. Targeted to product piracy it was widened by EU Parliament to all kinds of infringements, as a 'compromise' criminal provisions were left out. But this summer the Commission sent a new proposal for a 'European Parliament and council directive criminal measures aimed at ensuring the enforcement of intellectual property rights' to the European Parliament. It consists of one single broad core. Article 3: 'Offences Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences.' We will explain what side effects this fuzzy provision might have in regard of the software patent problems and business risk in general.

• Community patent and reform of the European Patent Office

(no EU institution) We have a European single market but no community patent yet. The last attempt failed due to so called 'language reasons'. The delay offers room to rethink and improve the whole instutional framework. The European Patent Office is reforming. The aim is to make the Technical Boards of Appeal more independent. Here is what the EPO writes about that: "The Organisation would then have the three-way separation of powers typical of a state bound by the rule of law, into legislature, executive and judiciary, the latter being the new judicial body." In particular, we and other stakeholders have endorsed proposals for privatisation of this system by careful distribution of burdens of proof. Such a reform would result in debureaucratisation and, by consequence, dissolution of the European Patent Organisation, which some have called "an intergovernmental creature that no longer has a place in today's European Union". A lean privatised patent examination system would, as a side effect, also solve the problems of the Community Patent.