EU keeps tinkering with software patents

European authorities fail to close loopholes in legislation that will make software patentable, critics say.

A key vote on European Union legislation that will make software patentable has left loopholes intact and may have even widened them, critics say.

Amendments that would have prevented companies from taking out "pure" software patents were largely thrown out by the European Parliament in a key vote Monday night.

The Foundation for a Free Information Infrastructure (FFII), a group campaigning against software patents, said the amendments to the directive that did pass have symbolic value only: for instance, replacing the phrase "computer-implemented invention" with "computer-aided invention."

Eva Lichtenberger and Monica Frassoni, Green parliament members, issued a statement saying that although all parties involved in the directive claim to be opposed to "pure" software patents, the legal uncertainty created by the directive will allow that to happen.

"Though all political groups claim that they want to exclude 'pure' software patents from the directive, the pro-big-business majority in the committee succeeded in creating dangerous loopholes," said Lichtenberger and Frassoni. "A definition of the difference between software and technique, for example, says that software can be considered to be the novel feature in an invention, and thus is patentable."

They said the current form of the directive will "give big business the opportunity--with the help of well-paid patent lawyers--to sew up the European market and throw out smaller players."

The proposals, which were drafted by legal committee's rapporteur, Michel Rocard, would have made it clear that innovations can only be patented if they use software to aid the performance of the invention and not if they comprise "pure" software only.

Rules on interoperability also came in for a roasting. The FFII, which cites these among the worst articles, said: "Patents on techniques required for interoperability are kept under RAND (reasonable and nondiscriminatory) conditions, so the line ensuring that actions for the purpose of interoperability are always allowed is dropped."

Lichtenberger and Frassoni said the definition is tailor-made to give companies "the possibility of earning extra-money on patent fees if someone else decides to construct interoperable technical devices."

Some of the proposed amendments were meant to revert back to the changes introduced by the European Parliament in the first reading, which were later removed by the EU Council. These include a change to make it clear that innovations in the field of data processing cannot be patented.

The directive is set for a full Parliament vote in two weeks.

Matt Loney of ZDNet UK reported from London.

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