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Posted: Mon, July 18, 2005
UK Patent Office - The ITWales Interviewby Sali Earls The subject of patents hit the technology media headlines in the last few weeks, when the European Parliament overwhelmingly rejected the "Computer Implemented Inventions Directive", bringing an end to a hard fought and passionate three-year debate. Patents as a concept can terrify small companies, who feel that they cannot afford to purchase and protect patents to protect their work, and high profile cases like this can serve to increase uncertainty. With this in mind, Sali Earls spoke to Steve Probert, Deputy Director of Patents at the UK Patent Office to find out what UK SMEs and software developers need to know about patent law. The rejection of the Software Patents legislation by the European Parliament has brought the subject of patent law into the spotlight. What do small innovative software developers need to know about patent law in the UK and Europe as it stands to ensure that they protect their work, and protect themselves from prosecution? They need to know that computer programs can be patented if they involve a technical contribution. Not every computer program will involve a technical contribution; indeed, I would say that most computer programs do not. Any software developers who are working in a field of technology need to be aware that patents exist so that they can decide whether to protect their own innovations, and also so that they can be aware of the possibility that they may be infringing someone else's rights. Academics and developers believe that patents for software can never work as they block creativity, and are against the spirit of development. Indeed, open source software company Red Hat has issued a patent policy to that effect, stating that as well as impeding innovation, patents are also inconsistent with open source. The software community were quick to make their feelings known while the Software Patents legislation went through the European Parliament. In light of such a strength of feeling among the community, do you think that software will ever be patentable in Europe?
In a recent public consultation, the general consensus was that the UK and Europe should not move towards the American system, which allows all computer programs to be patented. It confirmed that the current legal position is the most suitable for Europe. The consultation also confirmed emphatically that so-called "business methods" should remain unpatentable in Europe. At the Holland Open Source Conference in May, a paper was presented on so called "trivial" patents. Microsoft and other large companies have been patenting computational expressions, and the implications for software development are grave. What is the opinion of the Patent Office on such a practice? How does the law protect UK companies against such activities, and what would be done to help a UK SME should a large company seek to exercise their rights over such a patent? itwales.com readers can access the open letter to Microsoft here. If you have any thoughts or comments on the subject please contact the editor.
Many believe that patents can only really work for big organisations, who have the time and money to research, buy and protect patents. But how can companies with less manpower and limited finances make the patent system work for them?
Companies can only make the IPR system work for them if they understand that system, and use it as they would any other commercial tool. My research of the subject has brought up many interesting things. I've found that concepts like an online shop, and paying online by credit card are patented. With so many small companies setting up e-commerce websites, how does the law protect them when they are using ideas patented by others, and what can they do to protect themselves? Online shops and paying online by credit card may be patented concepts in the USA, but such patents (if granted) would not be valid in the UK - unless there is a genuine technical invention, which seems unlikely in the examples quoted. If a company is sued for infringing an invalid patent, there is a statutory defence provided by section 74 of the Patents Act. Useful Links: The Patent Office The Wales Innovators Network IP Wales |
Computer programs are already patentable in Europe.
They always have been. The current law, which dates from the mid-seventies, limits patentability to computer programs that involve or embody
a technical contribution. Creativity and open source software does not appear to have been blocked or impeded during this period, so it is difficult to see why that should happen in the future if the
existing legal position is maintained.
There is no law against "trivial" patents. In fact a
significant proportion of patents across all fields of technology relate to what is more commonly described as "incremental" inventions - ie. small
improvements to existing ideas. However, the so-called "IsNot patent" (which I have not seen) appears to be a US patent and therefore it could not be enforced in the UK. Indeed it seems likely from
the description in the open letter that it would not be possible to obtain a valid patent for such an invention in the UK. That being the case, UK SME's should not be troubled by large companies
seeking to exercise valid rights in this area in the UK.
Smaller companies can, and do use intellectual property
rights to their advantage. In Wales there are a number of support organisation that can assist in this area. The Wales Innovators Network,
offers a range of professional advice, including advice on IP, practical support and commercial connections. IP Wales, can also help, this initiative aims to add value to business through the use of
patents, trade marks, industrial designs, copyright, database rights and know-how.|
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