Patently, There's Something in the Air

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Yesterday I was writing about the latest moves in the TomTom saga, and its involvement with the Open Invention Network patent commons. But beyond that specific case, patents – particularly software patents – really seem to be in the air at the moment.

Nearest to home, the FFII reminds us that the European Patent Office may be trying to sneak software patents in through the back door, by-passing scrutiny by the European Parliament:

The President of the European Patent Office (EPO), Alison Brimelow, has asked the Enlarged Board of Appeal (EBA) to decide on the interpretation of the European Patent Convention (EPC) regarding the exclusion of software from patentability. The EBA is replacing the European Parliament in order to validate software patents EU-wide without the need of a debate.

Benjamin Henrion, President of the association, says: "The current plan of the patent lobby is very clear: avoid a new software patent directive, validate the EPO practice via a central patent court, and guide the hand of the courts via a decision of the Enlarged Board of Appeal. They want to avoid the intervention of the European Parliament in substantive patent law."

The FFII notes that interested parties have until the last day of April to send their comments to the Enlarged Board of Appeal.

Meanwhile, on the other side of the pond, not one, but two bills are proposing to reform the patent system there. Although software patents aren't explicitly mentioned (at least, not that I know of), there's bound to be a knock-on effect. At the same time, judges and lawyers are still trying to work out the implications of the major Bilski decision.

Finally, the World Intellectual Property Organisation (WIPO) is also looking at the whole area of patents. Particularly significant is the explicit consideration of “Exclusions from Patentable Subject Matter and Exceptions and Limitations to the Rights”, which mentions programs as one such area that might be examined.

It's hard to tell whether good or bad will come out of these initiatives, but it's clear that software patents are a hot topic at the moment.