IDG News Service —
The decision announced last week to refer the controversial question about the patentability of software to the highest appeals body of the European Patent Office has been welcomed by lawyers and software engineers alike.
Technically, software per se can't be patented in Europe. However, in reality, thousands of software patents have been granted both by the EPO and national patent offices in the 34 countries that are members of the EPO.
No wonder that patent judges in many countries have been calling for the Munich-based EPO to clarify matters.
Alison Brimelow, president of the EPO, referred the contentious question about how to assess the patentability of software-related inventions to the enlarged board of appeal (EBoA) last Friday, reversing a decision not to refer taken last year by her predecessor, Alain Pompidou.
Referrals to the EBoA are rare, occurring only with the most complex questions. For example, another issue being considered by the EBoA is the question of whether human embryos can be patented.
The patentability of software has provoked fierce debate in Europe over the past 10 years. In 2005, a proposed E.U.-wide law attempting to clarify the matter was scrapped because of the depth of divisions between the pro- and anti-patent lobbies.
In an interview at the beginning of this year, shortly after she took over the top job in Munich, Brimelow said she wasn't ready to refer the software patents question to the EBoA, perhaps out of respect for her predecessor.
Now that she is ready, the reaction has been positive.
"It will be a landmark case with a sizeable effect on the interpretation of patent law even beyond Europe," said Thomas Vinje, an intellectual property expert and partner at the law firm Clifford Chance.
Pieter Hintjens, a prominent campaigner against software patents during the political debate in 2005 and founder of software company Imatix, welcomed Brimelow's decision.
"The (EPO) has resisted doing this for many years. In the past it didn't want to clamp down on software patent applications for economic reasons: The EPO makes money from patent applications and renewals. Brimelow at last is taking a healthier approach, prioritizing the long-term interests of society ahead of the short-term financial ones," Hintjens said.
On the other side of the debate, Jonathan Zuck, president of the Association for Competitive Technology and an ardent fan of software patentability, also welcomed Brimelow's move. "The lack of clarity has frustrated the system in Europe," he said. Zuck is a software engineer by trade.
