Will Darkness Cover the Face of the Earth?

by on December 14, 2004

After managing to wangle an extra day’s holiday from work after I mixed my dates up, I attended the meeting today on the European Computer Implemented Inventions Directive today at the DTI. Lord Sainsbury of Turville had generously invited all those who had written to their MPs (well, some of them at least) to explain the government’s position on software patents and to allay fears of impending doom.

It’s certainly a bit of a complex area, and it was clear that much was unclear on both sides of the argument. But some of my worst fears were confirmed. But the gist of the debate went as follows:

The primary issue of “technical contribution” as a hurdle that must be cleared for software to be considered patentable seems to be too low. The UKPTO also isn’t properly equipped to judge what is and what is not sufficiently “technical” in most applications and this is really ringing the alarm bells (while arguing a point, one of the UKPTO officials clearly confused a file system with a file format and didn’t seem to understand some of the points being put from the floor). Not only that, but the wording of the proposed legislation on this point is just too broad. The patent office has framed too many of the principles around hardware and not software, and there is a lack of provision for the underlying nature of software development as a whole. In short, things are pretty grim.

Less pointedly debated was whether the actions of the Council of Ministers in not implementing the amendments reccommended by the EU parliament (which, while not wonderful, were at least OK) is a symptom of gross corporate lobbying. In their defence, the UKTPO said that this is down to them wishing to frame the legislation so as not to disadvantage technological industries other than that of software. Therefore, they want to keep the definitions such that they should be interpreted by the courts, and not so detailed as to be restrictive or have undesirable, knock-on effects.

That’s all very well, but we came back to the fact that the clauses as they stand seem to define just about anything as “technical” – the majority of EU software patents granted to date are simply re-writes of US and Japanese patents with token “technical contribution” clauses added.

From my own point of view, if the Council of Ministers gets it way, working in the software industry (and that includes UI design) is going to become either more complex or more dangerous, or both. While there were many at the meeting that expressed more concern about this than I did, I am starting to wonder if we are not in fact on the edge of a precipice. The UK government seems to think it’s doing the right thing in attempting to clarify and stabilise the current situation by pushing this legislation forward, yet the current situation itself is unacceptable. Preserving it will mean monopolists will have the legal platform from which to launch the proper destruction of fair competition and innovation in software. Anti-competition law is going to prevent the worst abuses, but the speed and rate of change involved in the software business will run rings around any attempt to keep a lid on things using that part of the law.

So what now? I’m going to read up on what my mates at the FFII have said once their account of the meeting comes out.

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