Software Patents Storming Up the Agenda Again

As regular readers of this column will know, software patents have never really gone away, even though the European Patent Convention forbids them, and the European Parliament explicitly rejected them again in 2005. Fans of intellectual...

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As regular readers of this column will know, software patents have never really gone away, even though the European Patent Convention forbids them, and the European Parliament explicitly rejected them again in 2005. Fans of intellectual monopolies just keep coming back with new ways of getting around those bans, which means that the battle to stop them crippling the European software industry has to be fought again and again.

An interesting example of the growing confidence of the pro-software patent lobby is that the European Patent Office has even included a software patent in this year's nominees for the European Inventor Award:

Fifteen scientists and engineers have been nominated for the European Inventor Award 2013 for their contributions to technological, social and economic progress. The award is presented annually by the European Patent Office (EPO) to outstanding inventors in five categories. For the first time, the public, too, is invited to cast their vote to select the winner of the Popular Prize from among the 15 finalists. The 2013 winners in all categories will be announced at a ceremony in Amsterdam on 28 May in the presence of Her Royal Highness Princess Beatrix of the Netherlands.

This year's nominees cover the fields of medical technology, pharmaceuticals, optics, metallurgy, electronics, computers and LCD technology. They originate from nine European and two non-European countries. The 15 finalists were selected by a prominent international jury from 160 inventors and teams originally put forward.

Here's the software patent that's been included:

Philipp Koehn, Daniel Marcu, Kevin Knight and William Wong (Germany, Romania, United Kingdom, USA): German computer scientist Koehn and his team at the University of Southern California invented phrase-based machine translation using a statistical approach. Koehn's revolutionary method is being used by the biggest names in machine translation. It is also used in the EPO's Patent Translate service for free machine translation of patents. An entire industry has emerged based on this invention.

Here's one section from the patent:

Since the system doesn't have access to computers with unlimited memory, the system initially learns t distribution entries only for the phrases that occur often in the corpus and for unigrams. Then, through smoothing, the system learns t distribution entries for the phrases that occur rarely as well. In order to be considered in the next step of the algorithm, a phrase has to occur at least five times in the corpus.

As you can see, this speaks about using algorithms (that is, mathematics) running on computers – the very definition of software. The inclusion of a pure software patent in the European Inventor Award shortlist is a real slap in the face of European companies and citizens, and looks like a calculated provocation from the EPO. That's probably because it knows that the imminent Unitary Patent will allow it to introduce software patents across Europe by the backdoor – again, despite all the conventions and votes against it.

However, just when all seems lost, a ray of hope shines forth:

The German Parliament has passed a joint motion against the growing trend of patent offices to grant patents on software programs. The resolution on "Secure Competition and Innovation in the software development," obliges the German government to take steps to ensure that software is protected by copyright only and no additional patent protection is granted.

Here's what it says about the EPO [.pdf]:

in practice patents are being granted – in particular by the European Patent Office (EPO) - with effects on computer programs in which the patenting of pure data processing ideas are presented nominally as "technical procedures" or "technical devices" with explicit claims made on these processes as found in computer programs. The number of software-related patents granted by the EPO alone is estimated in the high five-figure range.

The motion rightly notes the dangers of software patents for developers:

This situation means for software developers considerable legal uncertainty: the abstractness of the claims has the result that a software-related patent affects all individual implementations of the protected solution in concrete computer programs. Computer programs that contain the patented technique may not be used commercially without the consent of the patent holder.

Interestingly, the solution proposed is to rely on copyright to protect programs not patents. The logic is that copyright protects the particular implementations of an idea, whereas patents monopolise the idea itself, thus preventing others from using it freely. Even better, the motion explicitly calls for open source to be protected.

Of course, this is only a motion at the moment: it remains to be seen how the German government responds to it. Nonetheless, the fact that it is a cross-party motion is extremely encouraging. And it comes at just the right time. For as well as the threat posed by the Unitary Patent, we will soon have the negotiations for the mega free trade agreement between the EU and US (plus a few others that come along for the ride). You can bet that the US will use the opportunity to push for patent "harmonisation" - by which it means harmonisation to its approach, not to Europe's – and that includes software and gene patents. More on what promises to be the big battle for the next year or two, and what you can do to make it better, coming up soon.

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