Software Patents : where are we now

[ Written for Simon Says column on Computer World UK ]

On December 11th 2012, after decades of discussions, the Unitary Patent was adopted by the European Parliament, endorsing the European Patent Office case law, enforcing software patents in Europe. The Foundation for a Free Information Infrastructure deplored what they called a ‘suicide [ from the European Parliament ] as a legislator in patent law’.

So far, the patents granted by the EPO were not endorsed by the European Union and had thus a limited effect in Europe – the EPO operating as an independent entity auto-financed by the patents granted to its clients, mainly big industries, with no democratic control whatsoever.

Two months later, an agreement was reached by the Council with regards to the creation of a Unified Patent Court, first step towards making the Unitary Patent enter into force. A preparatory committee was set up and a public consultation was launched with regards to the rules of procedure that shall apply to the Court.

Surprise : whereas the civil society did not show much interest, big industries suddenly decided to stand together as a sole man to point out the high risks of abusive lawsuits induced by the rules. Since then the whole process has been postponed, leading the Unitary Patent to an eventual dead end.

Just another example of the gap between EU legislation and reality.

Patent trolls indeed became a top priority issue in 2013, as the number of ‘non tech’ businesses being attacked started growing – advertisers, banks, restaurants, shops. This led to the adoption of the Innovation Act by the United States House of Representatives, which was applauded by civil society as a major step towards patent reform.

The provisions include transparency requirements as well as customer stay clause, which protects businesses from attacks as long as manufacturers agree to handle the case. The bill does not solve the software patents issue though and only addresses the problem of Non Practicing Entities which economical model is based on patents monetizing.

In truth, trolling practices are not the exclusive bastion of NPEs, but no more and no less than the daily routine of major corporations – eventually hiding behind a separate legal structure.

A perfect illustration is given by the ongoing patent war between giants of the mobile industry. After declaring they would not use their patents against open source unless being first attacked, Google is now building a major portfolio of trivial patents, discrediting once and for all the whole patent system.

The US Supreme Court should soon respond to a key question though, ie. whether or not software shall be considered as abstract idea, and thus, excluded from patentability, with the Alice v. CLS Bank case on the use of certain methods for the purpose of financial transactions.

Whereas Europe and United States are still highly suffering from the gangrene caused by the patent microcosm, the New Zealand government took a rather courageous decision by cutting off the sick limb, banning software patents once and for all from its territory. Amendments to the Patents Bill were voted accordingly to clarify its legislation, showing the way towards a sustainable digital industry.