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EU directive could spark patent war

Merits aside, the European Union's proposed directive on software patents could lead to chaos, because it's out of step with U.S. laws, analysts say.

The European Parliament's decision to limit patents, as they apply to software and business methods, risks creating a "patent war" with a fallout that could make it illegal to access some European e-commerce sites from the United States, analyst firm Gartner has warned.

The parliament recently voted to approve the Directive on the Patentability of Computer-Implemented Inventions--but with a series of amendments that are designed to limit the ways in which software can be patented.

Pure software should not be patentable, the parliament argued, and software makers should not be required to license patented technology for the purposes of interoperability--for example, creating a device that can play a patented media format, or allowing a computer program to read and write a competitor's patented file formats.

The amendments also sought to ban the patenting of business methods such as Amazon.com's patent on one-click purchasing. In the United States, business methods and pure software are routinely patented, a situation that has been harshly criticized by information technology executives, software developers, economists and others as being harmful to competition and innovation.

Though the European Union's patenting system might more effective, Gartner has highlighted problems that could arise from its being out of sync with the system in United States. For example, if a patented e-commerce technology is enforceable in the United States but not the European Union, users of the technology in the United States could be breaking the law by accessing an EU Web site that employed the technology, according to Gartner.

"If the amended directive becomes law, the significant differences between the U.S. and European approaches to software patenting raise the prospect of a patent war," the firm said in a statement.

Any practical effects will take until at least the end of 2005 to appear, Gartner estimated, the earliest date the EU governments could introduce the directive's provisions into national law.

U.S. concerns
The U.S. government has also expressed concern about the directive's amendments, according to documents seen by ZDNet UK. In a letter to the European Parliament that comments on the amendments, sent before the vote, a U.S. official said three articles of the directive are particularly "problematic." The most troubling: Article 6(a), which states that patents cannot be used to restrict interoperability, said the official, who recommended that the article be deleted.

The Foundation for a Free Information Infrastructure (FFII), which lobbied in favor of the amendments, responded that it would be absurd to rely on antitrust law to protect the software industry from companies' attempts to control data-exchange standards.

"The U.S. DoJ v. Microsoft case shows how insecure and inefficient competition law is in this area," the organization said in a statement. "Competition considerations need to be built into a patent directive which deals with software-related problems."

The patents directive will next return to the European Commission for review, followed by votes in parliament and the Council of Ministers, after which, if approved, it will be implemented in the national laws of EU member states.

However, the commission has indicated that the amendments may be "unacceptable" to it and is considering withdrawing the directive.

Matthew Broersma of ZDNet UK reported from London.