Software Patents and the European Union

Software Patents and the European Union

Introduction

The European Council recently approved changes to the European Union’s Software Patents Directive that will lead the way to widespread patenting of software in Europe.[1] If the changes are ratified without modification, then the European Patent Office (EPO) will have the ability to grant software patents in much the same manner as the United States Patent Office (USPO). This will lead to many of the problems that have arisen in the United States. For instance, the USPO is infamous for issuing patents for obvious software process, such as Amazon’s 1-click shopping. The granting of these obvious patents has led to a flurry of litigation, where the patent holder tries to extort licensing fees for alleged “patent infringement”. This has led to corporations to try and patent “everything under the sun”, in order to protect them from getting sued and to create a platform to launch their own litigation/licensing extortion from their competitors. It has also created a flood of patent applications for software, giving the overworked USPO little time to examine and research for any “prior art” that would invalidate the patent application.

After giving a background on software patent history in the European Union, this paper will attempt to analyze the ethical issues of software patents. Do they bring more harm to society than good? Do they promote innovation and research or do they stifle invention? These questions, along with other issues dealing with software patents, will be examined from a variety of ethical perspectives.

Background

Initially, software was not patentable under European law. This was decreed in the Article 52 of the European Patent Convention of 1973, which states that “mathematical methods, intellectual methods, business methods, computer programs, presentation of information etc are not inventions in the sense of patent law.” [2] However, small changes in European Patent law over the years has led to the patentability of “process claims”, “program claims”, and even “computer-implemented inventions”, which has led to 30,000 software related process patents.[3]

In 2002, the European Commission's Directorate for the Internal Market proposed the creation of a Directive to clarify the patentability of computer-implemented inventions and reduce excess at the EPO. However, the Directive only put on paper what the EPO had already been practicing, which was granting unlimited patentability.

In September of 2003, a set of amendments to the Directive were voted in by the European Parliament.