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EU directive 'could spark patent war'

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Matthew Broersma ZDNet.co.uk

Published: 03 Oct 2003 13:20 BST

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The European Parliament's decision to limit patents as they apply to software and business methods risks creating a "patent war", with fallout that could make it illegal to access some European e-commerce sites from the US, analyst firm Gartner has warned.

The European Parliament recently voted to approve the Directive on the Patentability of Computer-Implemented Inventions, but with a series of amendments designed to limit the ways in which software can be patented. For example, pure software should not be patentable, the Parliament argued, and software makers should not be required to license patented technology for the purposes of interoperability -- for example, creating a device that can play a patented media format, or allowing a computer program to read and write a competitor's patented file formats.

The amendments also sought to ban the patenting of "business methods", such as Amazon's patent on "One-Click" purchasing. In the US, business methods and pure software are routinely patented, a situation which has been harshly criticised by IT executives, software developers, economists and others as harmful to competition and innovation.

Now anlayst firm Gartner has highlighted potential problems that could arise from the EU's patenting system being out of step with that of the US, even if the EU's system is more effective. For example, if a patented e-commerce technology is enforceable in the US but not the EU, US users could be breaking the law by accessing an EU Web site that used the technology, according to Gartner. "If the amended directive becomes law, the significant differences between the US and European approaches to software patenting raise the prospect of a patent war," the firm said in a statement.

Any practical effects will take until at least the end of 2005 to appear, Gartner estimated, as this is the earliest date at which EU governments would be able to introduce the directive's provisions into national law.

The US government has also expressed concern about the directive's amendments, according to documents seen by ZDNet UK. In a letter to the European Parliament commenting on the amendments, sent before the vote, a representative of the US government singled out three articles of the directive as particularly "problematic". The most troubling was Article 6(a), which states that patents cannot be used to restrict interoperability, the representative said, recommending that the article be deleted.

"Overall, the scope of Article 6(a) is so broad that it would significantly undermine the rights of affected patent owners," the representative wrote. If there were concerns about patents being used anti-competitively, these should be handled under competition law, he wrote.

The Foundation for a Free Information Infrastructure (FFII), which lobbied in favour of the amendments, responded that it would be absurd to rely on anti-trust law to protect the software industry from companies' attempts to control data exchange standards.

"The US DoJ v. Microsoft case shows how insecure and inefficient competition law is in this area," the organisation said in a statement. "Competition considerations need to be built into a patent directive which deals with software-related problems."

The patents directive will next return to the European Commission for review, followed by votes in Parliament and the Council of Ministers, after which, if approved, it will be implemented in the national laws of EU member states.

However, the European Commission has indicated that the amendments may be "unacceptable" to it, and is considering withdrawing the directive.

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