Compliance Toolkit

Why the Eurocrats are patently mad

Matt Loney ZDNet.co.uk

Published: 21 May 2004 17:45 BST

The vote passed by the European Council on Tuesday marks a dark day for software developers in Europe, private citizens and small companies who cannot afford to launch or defend expensive patent lawsuits.

It is a triumph for big businesses, for whom the way is now almost clear to use software patents and threats of litigation to intimidate small competitors out of markets, and perhaps even stop competitors from creating compatible software.

We're all going to feel the effects, and it's not going to be pretty.

The first problem when talking about software patent law is the language that is used. One of the best ways to win an argument is to use language that obfuscates the issues; just ask any lawyer. And if there is one thing that is more deliberately obfuscating than legal language, it is patent language. Just imagine how bad things get, then, when people start wrapping patent language up in a thick coating of legalese so they can draft laws on the subject. As if that is not bad enough, the whole has a soft gooey centre of software jargon which, to the chagrin of most observers, the European Patent Office and the other powers that be who have been pushing through the Software Patents Directive consistently refuse to define.

At the centre of the argument lies the term 'technical'. I'll leave it to the esteemed Foundation for a Free Information Infrastructure (FFII), which has perhaps done more than any other to translate the language of the lawmakers, to explain the subtleties of the terms and the attitude of the Patent Office. What I find quite Orwellian is that a term that even the Patent Office admits (and seems proud to admit) is so vague, can seriously be wrapped in the precise -- if obtuse -- language of patents and law.

Language is further used to disguise the agenda of the lawmakers; every proponent of the legislation that got passed on Tuesday will say they oppose broad and trivial patents, and they will say this is precisely why they have pushed for the particular wording that has been used.

And yet according to organisations such as the FFII, this legislation will promote exactly the type of broad, trivial software patents that have caused so much trouble in the US where even Amazon chief executive Jeff Bezos, whose company patented the infamous 'One-Click' method, was eventually moved to write an open letter calling for patent reform. The One-Click patent, together with others such as Priceline's Reverse Auction patent and Open Market's 'Shopping Cart' patent, which is now owned by Soverain Software and which recently came back to bite Amazon, are prime examples of the sort of business methods that we are now likely to see patented in Europe. Such patents are the software equivalent of patenting the corner shop.

So where exactly are we now in Europe?