A patently tricky source of concern

Europe's proposed new patent laws are worrying computer programmers

If you had walked down Victoria Street in London in mid-December you might have spotted Alan Cox, author of much of the code inside the Linux kernel, loitering outside the DTI building.

Inside, our minister for science and innovation, Lord Sainsbury, and a team of suits from the British Patent Office in Wales were trying to reassure 100 or so computer programmers that Europe's plan to pass new patent laws does not mean that Europe is going to follow America and Japan in allowing patents on more or less anything, including computer code and business schemes.

"They say they weren't excluding me, they just forgot to invite me," said Cox, while handing out leaflets that challenged most of what was being said inside.

Almost certainly the Cox exclusion was a cock-up rather than conspiracy. The DTI suits were near desperate to get their message across, if only because they've spent the past five years under a barrage of letters from the open source community and their MPs.

The DTI's problem, which is also the problem for the law-makers in Brussels, is that the original draft for a new European patent law was an apparently well-intentioned mess, which was further confused by clumsy amendments.

The law-making process in Europe, which creates directives all European countries must follow by enacting changes in local law, is bewildering. Patent law is complicated anyway, and no-one trusts anything that politicians, Brussels lawyers or big businesses tell us.

"They want to build bridges as long as everyone goes across their bridge," said Cox, typifying the them-and-us distrust.

Inside, Peter Lawrence, director of policy at the British Patent Office, said: "When people don't understand they are frightened, so they oppose. For instance, people don't distinguish between a patent that has been published while pending, and one that has been accepted and granted. Only 50 per cent of published patents are granted. The rest are refused."

He added that when people talk about 30,000 software patents being granted in Europe, these are published applications or patents on computer-implemented inventions.

"You don't get a patent on a mobile phone, or the software code in a phone, you get patents for the hundreds of 'computer-implemented' systems inside the phone that depend on software," explained Lawrence.

Some people are ideologically anti-Microsoft and anti-patent. "Realistically, we don't expect to win these objectors over. But we can remind them that Europe has very powerful competition laws on abuse, and that the laws are being used against Microsoft," he said.

"We asked for concrete examples of cases where European software patents had been used against open source software; where someone had said: 'You're not big enough to take us on. Back off.' No-one could point to one. Something would surely have come out of the woodwork by now."

Lawrence went on to say that some small businesses have been scared into thinking that they need to employ a patent lawyer. "We have more hope of explaining the situation to them," he said.

Peter Hayward, policy maker at the UK Patent Office, stated: "For something to be patentable it should make a 'technical contribution'. The first draft tried to define that in terms of 'forces of nature', the definition that is used in Japan and came from an old German court case.

"But that phrase has now been dropped. Source code is not patentable and will not be patentable. Business schemes will not be patentable either."

Hayward pointed out that even IBM has revealed that it does not want the American situation in Europe. "American law only changed because a judge in his nineties said that everything had always been patentable, and then died a couple of weeks later," he said.

"This opened the floodgates. What's happened there is extraordinary. There's been a land grab, or a patents arms race. The directive is intended to pin things down and stop any drift towards the situation in the US and Japan. We are confident that the new draft will not open any floodgates."

I once worked as a patent agent, patenting inventions. I gave it up to be a journalist, largely because I was tired of helping inventors waste their money trying to patent stupid ideas. But I have kept on scanning newly published patents to find out what companies are doing but will not tell me as a journalist.

So I know first hand that many patents coming out of the US are not worth reading because large companies can now patent almost anything, including vague business schemes and internet ideas. The US Patent Office in Washington grants these daft patents and the large companies can use them to batter small companies into submission.

That's what will happen in Europe if the law isn't clarified to outlaw business schemes. The draft directive looks like an attempt at doing this. But even if it's not, let me remind the open sourcers about the legal trick known as 'prophylactic disclosure'.

Once an invention has been disclosed, it can never be patented by anyone. So if you don't want to be held to ransom, just publish your ideas on the internet and keep dated proof of the posting.