There is plenty of discussion and argument, most of it focused on the patent establishment, in various parts of the world, but in particular in Europe, over the granting of patents for software and computer algorithms.
The words “patent establishment” crop up time and time again in papers published on the Internet and elsewhere, but rarely are the words explained. What exactly is the patent establishment?
In the case of Europe, which is where most of the controversy is being voiced at present, the patent establishment comprises of:
- The patent office administrators of the various member states, sitting on the European Patent Office's Administrative Council
- The patent lawyers of large international corporations, sitting on the Standing Advisory Committee of the European Patent Office (SACEPO)
- The patent administrators of the European Commission in the Industrial Property Unit at the Directorate General for the Internal Market
The European patent system and in particular the rules governing what is patentable, is almost the identical to that in South Africa. The European Patent Convention of 1973, like the South African Patents Act, states that mathematical methods, intellectual methods, business methods, computer programs, presentation of information etc are not inventions in the sense of patent law, and as such they are not patentable.
The patent establishment, under much lobbying from large international software companies, thinks otherwise, and is seeking to amend legislation so as to include software. In the year 2000 the EPO attempted to delete all the exclusions listed under Article 52 of the European Patent Convention (see above).
The European Patent Office have approved more than 30,000 new patents, all for software, over recent years and are granting more than 3000 new patents each year. Patents are covered by copyright as soon as they are written, and the granting of patents to some of the large software companies has caused a bitter taste in the mouths of many smaller software houses.
The debate is far from over – the patent establishment has been accused of being deceptive, of denying access to documentation, and of going about things in an undemocratic way.
The demand for software patents continues to rise on an annual basis, and will continue to do so. One European electronics company holds more than 50,000 patents, and on a global level more than 700,000 patents are applied for each year.
The once true adage that patents are granted for ingenious inventions is no longer a valid statement. Software patents are granted for trivial algorithms – never for a huge breakthrough.
The patent establishment’s calls for the establishment of a central European Court to deal with patent litigation are far from convincing, and there is a strong lobby headed by the FFII (Foundation for a Free Information Infrastructure) to return to the strict rules that have been used in the past.
If you have any queries regarding patents, the patent establishment or software patents, please contact one of our patent attorneys, who will be happy to answer any questions you may have.
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