EU move prompts fresh fears about software patents

European lawmakers have again sparked fears that a software patents system may come to Europe.

The European Union's request for comments on an effective way to protect intellectual property in Europe has prompted fears of a renewed attempt to allow software to be patented, after an earlier patents initiative was blocked last year.

The European Commission, which is responsible for drafting new legislation for the 25-member European Union, launched a new round of consultations Monday on a patent regime for the E.U.

Announcing the initiative, E.U. internal market commissioner Charlie McCreevy said good intellectual property rules are essential to stimulate innovation and encourage the development of new products. He said he wanted to make a unified patent system for the E.U. a reality.

At the center of the discussions will be whether to revive work on a European Community-wide patent system for all 25 member states. E.U. governments have been trying to agree upon rules for a Community patent since 2000, but progress has been blocked by the refusal of countries such as Germany and Spain to allow English to be the official language for applications. Both countries fear they will lose lucrative patent registration work if their right to issue patents in their national languages are not protected.

Austria, which currently holds the six-month rotating presidency of the E.U., has said it will restart discussions on the Community patent in the coming months.

Members of the open source software community warned that the new initiative could be an attempt to reintroduce patents for software, which they say will harm innovation and unfairly benefit big technology vendors. The Commission's announcement of consultations with industry lobbyists were "a definitive indication that our camp has to take action again," said Florian Müller, who led the successful campaign to block the so-called computer-implemented inventions directive, or the software patents directive, as critics called it.

The directive was rejected by members of the European Parliament last June after one of the most intensive lobbying campaigns in the E.U.'s history. The directive concerned only inventions using computer technology, while the Community patent would apply to all areas of technological innovation.

In a statement, Müller warned that unless the current proposal for a Community patent was changed to remove a clause saying that the European Patent Office (EPO) should apply the case law which it has developed, E.U patent authorities would be "extremely likely to follow the EPO's law-bending approach and declare U.S.-style software patents legal in the E.U."

He added that it was "imperative" for the open source software movement to "influence the new debate on the community patent on a timely basis". Otherwise, it would be impossible to stop the "avalanche" of allowing software to be patented.

The Commission's consultation focuses on three major issues: the Community patent, how to improve the current patent system in the E.U., and possible areas for harmonization. Its questionnaire is available in English at http://europa.eu.int/comm/internal_market/indprop/patent/consultation_en.htm. French and German versions will be available by Monday.

The Commission is also seeking views on other actions that could be taken while work on the Community patent continues, in particular within the framework of the existing European patent system.

For example, one option may be to bring national patent systems more closely in line with each other, through either approximation of laws or mutual recognition of national patents, it suggested. The legal framework for jurisdiction over patent disputes will be an important area in this discussion, the Commission believes

One of the complaints about the current system of national patent authorities is that different patent offices have varying criteria for approving patents, and that these cannot be challenged with reference to a central set of definitions. For example, the Swedish patent office will not grant patents on inventions which are purely software without any technical innovation, although the European Patent Office has done so, according to critics of the current system.

Interested parties have until March 31 to communicate their views. After analyzing the results of this consultation, the Commission will organize a seminar in Brussels to discuss the outcome in June. If the Commission decides that it needs to present new legislation, such as a revised version of the Community patent, it would do so after the summer.

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