There are many of us interested in the software patent debate, but the EPO seems not to be one of those. The EPO held a one-day conference attended by parliamentarians, industry, NGO and experts to discuss what has happened since the dismissal of the Computer Implemented Inventions Directive two years ago (2 years? How time flies!) The consensus in the conference was that the debate will not be re-opened, and that there is no need for more legislation, or to resurrect the failed Directive. The efforts should go towards better patent quality and patentability, and perhaps even to sort out the messy case law.

Indeed, case law has been rather messy in this area. After Jacob’s controversial decision in Aerotel, there has been a case by the EPO Board of Appeals (T 0154/04) which refuses to answer the questions posed in the Aerotel ruling (more discussion about this in IPKat and IP::JUR). At the moment there are clearly two ways of dealing with software patents in European cases: firstly is the “technical effect scepticism” present in recent UK-based cases and exemplified by Aerotel. Then there is “technical effect purism” present in EPO Board of Appeals decisions, where they have directly criticised Jacob’s interpretation of European Patent Convention (which is rich coming from them, as technical effect has no basis in the EPC whatsoever).

We are left then with a rather clouded picture. It seems like we are in for a continued court battle, the balls are in the air and it seems like if you want to litigate in this area, the decision will depend on the forum.

Nevertheless, I think that some industry players are beginning to understand that software patents were not such a great idea to begin with. IBM continues to be at the forefront of this practice. Yes, they are the ones who apply for and obtain more software patents, but they are also continuously making efforts to project an image of usefulness. IBM has recently announced that it will “perpetual and universal access” to more that 150 software standard patents. This move is incredibly important because standards are what allow interoperability between devices and software. If a company owns a patent over a standard, it will be able to stifle innovation in that area, or to charge licence fees for others wanting to interact with that technology. by opening these basic patents, IBM will allow further interoperability and innovation in those areas in which it holds patents, a wise commercial move in my opinion.


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