Patent Differences: Canonical vs. Microsoft

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I make no apologies for returning to the subject of the European Patent Office's referral of a “point of law” concerning software patents.

Dull as many might find the intricate theoretical arguments, the outcome will have very real consequences. If software patents become easier to obtain, it will have a hugely negative effect on free software, which will find itself subject to more attacks on the legal front.

Recently I commented on the submissions of Red Hat and the FSFE. The full list of “amicus curiae briefs” can be found here; I'd like to pick out those from two high-profile names for their contrasting positions: Canonical (the company behind Ubuntu) and Microsoft.

Canonical's offering is very similar in tone to that of Red Hat: it's very matter of fact, written in a highly-accessible language that makes its points simply but effectively. Here's its main argument:

In Europe, computer programs, i.e. software, are protected by copyright as a creative work. It is Canonical's clear and firm belief that software does not require further regulation from any other form of intellectual property and that attempts to provide further protection via patents are and have been counter-productive.

Copyright arises at law and does not require registration in Europe. It is a free protection offered to the creative work of software developers and their employers. It is an appropriate way to protect both closed and Open Source software.

Money is not a barrier to entry to the reward of intellectual property protection of copyright in software. It is therefore a genuine reward and protection for small companies, community projects and individuals developers as well as large corporations, offering everyone automatic protection on a level footing. This is very relevant in Europe as “more than three fifths of the worldwide FLOSS developer community live in the EU.”

Canonical also has some harsh words to say on the vexed issues of what “as such” and “technical character” mean (something I've also written about at length):

Article 52(2) [of the European Patent Convention] clearly states that software methods are not inventions and do not attract the coverage of patent protection, however, the EPO has become increasingly focused on the analysis of the use of the words “as such” and whether this in fact should imply that there is some inclusion of computer programs in the patent regime.

The phrase “as such” does not have any special meaning in law. It is our view that this is an attempt to analyse working with a view to achieving software patentability despite the clear intention of the legislation. Article 52 clearly states that computer programs “shall not be regarded as inventions”.

In attempting to follow through the logic of the “as such” debate the Board of the EPO has further engaged in a second somewhat artificial anahysis, and created a ground for the distinction (as to whether patentability exists) to be made, depending on whether or not the program has a “technical character”. It is hard to imagine how software can not have a technical character?

Canonical would respectfully suggest that the wording of Article 52 should be interpreted in a simple fashion as it was probably intended and that this artificial distinction between “software” and “software as such” be removed. In turn this would remove the need for the tenuous further consideration of “technical effect”.