IT Week: Were you pleased with the European Parliament’s rejection of the Computer Implemented Inventions [CII] Directive?

Florian Mueller: We [anti-patent campaigners] scored a defensive victory, but sooner or later the confusion surrounding software patents will need to be resolved more definitively. Right now we have an ambiguous situation where software patents are issued by the European Patent Office [EPO] and national patent offices, but when companies try to enforce them their claims aren’t recognised.

If courts won’t recognise software patents, why is there an issue?

Many large corporations stockpile software patents and their mere existence can be used to threaten rivals even if they can’t get them legally validated. If a firm comes and says they have a patent on something you are developing, you have to make the decision right away if you can defend yourself or if you should meet their demands. There is also a risk that if one firm wins court support for a software patent they could gain a legal precedent.

Has the vote removed the prospect of existing patent claims being recognised in European law?

We expect the pro-patent lobby to try again. They tried to change the European Patent Convention [which bans software patents], and when that failed they tried to get patents through the back door with the CII Directive. Now plan B has failed it looks like they may try to get them legalised through the Community Patent (CP) Directive.

How would the CP Directive result in software patents?

The UK government is trying to broker an agreement on the CP [allowing firms to gain unitary patents across the EU] that includes a clause ensuring case law from the EPO becomes the basis for jurisdiction. Given the EPO has granted software patents it would make them legal through the back door.

What would you like to see happen?

We want it agreed by all patent offices that they will abide by the existing European Patent Convention, which says computer programs are unpatentable. At the moment many patent offices are bending the law and issuing patents on things only a computer program can achieve.

Why should IT directors be concerned about software patents?

It is in IT directors’ interest to have a competitive market and if companies can legally monopolise a software idea you do not get competition over the best means of implementing that idea. It means the monopolist can get away with inferior security, inferior performance and outrageous costs.

Doesn’t antitrust law stop this?

It is flawed because the cases take too long. What we need is an intellectual property rights regime that keeps the market competitive. For example, some IT directors may not use open source but they take advantage of its existence to negotiate lower prices. Open source forces Microsoft to put out good software, but software patents would make it harder for open-source developers to make good products.

About Florian Mueller

Florian Mueller is the founder of the NoSoftwarePatents campaign which opposes pressure by major IT vendors to bring US-style software patents to Europe.

Mueller marketed computer games before becoming a freelance strategy consultant.