On Tuesday (the 14th), I attended the meeting on Computer Implemented Inventions set-up by Lord Sainsbury and the Patent Office as a result of the large number of letters they received regarding the new European Directive on the Patentability of Computer Implemented Inventions. The meeting was chaired by Peter Lawrence, the Director of Policy at the Patent Office; also present were Lord Sainsbury, Minister for Science & Innovation; Peter Hayward, a Divisional Director of Patents at the Patent Office; and Steve Probert, a Deputy Director at the Patent Office (who was involved in an interesting and topical discussion on the IEE site).
I wanted to post a summary here of the meeting from my perspective as someone involved in running a small business, particularly in light of the fact that most other such summaries are likely to come from people whose reporting of the issues is not always as accurate as one might wish and has tended at times towards scaremongering (actually, I just read ZDNet UK's article, which is a pretty terrible piece of journalism as it is inaccurate as well as coming across as biased; The Register did somewhat better, although their claim that the current position is based on U.K. case law is not entirely correct—it is based on a combination of EPO and U.K. case law).
The Patent Office also said that they were going to publish a transcript of the meeting on their website, which should be valuable material, provided it isn't taken out of context. As soon as I find it on their site, I'll put a link here. I think two things stick out in my mind from that meeting. The first was that there were sadly (as I expected) a few people who really hadn't thought very hard about the actual issues and came across as ranting—particularly the guy who started by explaining that he was involved in high energy physics and had to be asked four times to get to the point. I also felt that a number of people would have done well to read the text of the Patent Act 1977 from the Patent Office Manual of Patent Practice before attending the meeting, because it outlines the current legal situation and summarises all the relevant case law, which might have helped people to better express what they felt were the difficulties with the law, both as it stands and in the proposed directive.
Second, I think it became apparent that the U.K. Patent Office is actually adopting a fairly sensible position; now, I don't necessarily 100% agree with the position they take (under which some operating system software and other low-level software may be patentable, in effect at least), but at least they are determined to avoid the sort of trivial patents that the FFII and others have been digging up from the archives of the European Patent Office. Actually, given the amount of research that FFII has put in finding patents they don't agree with, I was surprised that I was the only person attending the meeting that had thought to bring some specific, printed, examples with me (or at least, I was the only person that spoke that did so).
The Patent Office representatives also indicated that the stance of the examiners responsible for the EPO's drift towards U.S.-style patentability was not sanctioned by the EPO and that those examiners had been instructed to tighten up their interpretation of the existing law, although they said that they (and indeed the EPO) do not have the power to revoke patents that have already been issued, so any patents that slipped through would need to be challenged in a court.
One other issue that I think is worth clearing up is that of the meaning of “Computer Implemented Invention”. According to Peter Hayward, a patent can only be filed for an invention as a whole, and will not be granted (at least in the U.K.) for pure software. So, for instance, you could file a patent for a computer-controlled jackhammer that would prevent the operator from drilling through their foot, but the patent would only cover the jackhammer as a whole, and not the software within it—a position that I think most sensible people would agree with.
“a patent can only be filed for an invention as a whole, and will not be granted (at least in the U.K.) for pure software”
Now, plainly there are still issues—for instance, under this type of rule it is possible to patent a novel processor cache system involving software for some purpose (even if the main novelty is in the software), and since the software technique involved may be applicable to other similar hardware, the patent may effectively cover the software even if the letter and spirit of the law say that it does not, which I and others don't really agree with, but I must admit that it is difficult to come up with any simple rule for such cases.
Similarly, this is the reason it is possible to patent data compression algorithms and the like—although the patent still covers an invention, for something like data compression the invention might be quite broad and could be held to be applicable in many cases. I don't, incidentally, agree with the EPO view (from the Vicom case, which is where the “technical contribution” criterion originated) that image compression should be patentable because it concerns “the technical quality” of an image, nor would I (personally) be inclined to allow patents claiming a storage or data transmission device with built-in compression (where the major innovation was in the compression technique) because it would seem to preclude all useful applications of the compression algorithm and doesn't really contribute much to the state of the art in either data storage or data transmission. I get the impression that current U.K. Patent Office policy lies somewhere between these two positions; certainly they are not as permissive as the EPO has been in the past.
As for “program claims”, Peter Hayward made the point that a program claim is still subject to the rule that the patent is for an entire invention and not just for a piece of software. So (to use his example), you might be able to patent a process for mass-produced yet individually decorated mugs that relies on software as an integral component of the process. However, assume that you are a company that came up with the idea but just produces the software; in this case, a “program claim” would be appropriate, as it would protect your idea (mass-production of individually decorated mugs which happens to use your software) without requiring you to sue potential customers if they (for instance) bought software overseas to enable the same process.
“a program claim is still subject to the rule that the patent is for an entire invention and not just for a piece of software”
Importantly, this is quite different from the understanding many people seem to have of program claims, which is that they patent the computer software—they don't, they still patent the whole invention, but they change who you can sue for infringement… instead of suing your customers, you can now sue your competitors (remember, patents are supposed to grant monopoly rights, so this makes some sense). I should also say that, like other members of the audience, I don't think the individually decorated mug example is a very good one, except that it is quite easy to understand, which I suspect is why it was chosen.
Other than my feeling somewhat reassured that despite some of the rhetoric from FFII and others, the Patent Office is in fact not engaged in some sort of backdoor legitimisation of software patents, I think four main useful points were raised at the meeting:
We (the developer community) would like to see some sort of definition, or at the very least clear guidance as to what patent examiners should understand by the words “technical contribution” in the context of patents for Computer Implemented Inventions. In particular, our major concern is that the bar has at times been set far too low (especially by the EPO) and that the fact that the criterion still isn't defined by the current draft of the Directive provides significant opportunity for the patent system to again drift towards the American position.
There is considerable concern from the standardization community about the availability of patents in areas such as data compression, encryption and the like. In particular, I.T. standards—and by that, I am not referring to products that come out of Redmond, but the work of the IETF, JPEG, MPEG, W3C and others—are usually licensed free of charge to all comers, which is even less restrictive than the “reasonable and non-discriminatory” rules under which the telecoms industry (for instance) operates. This, it seems, is quite a thorny issue, because telecoms companies already hold and make use of patents in these areas, and I think the Patent Office and the Government are understandibly reluctant to make any changes that might harm the patent-driven innovation that does go on in the telecoms arena.
Another issue that is worrying the software development community at present is interoperability. We are told that competition law can be used to enforce interoperability requirements already where necessary, a point made again by Peter Lawrence, although he did concede that it was difficult to enforce competition law in some cases—but also commented that the maximum fine (10% of turnover) was a hefty incentive for companies to comply. As I am currently running a company myself, I have to agree, and also think it is worth highlighting the fact that the penalty is a percentage of turnover rather than profit—that is, being fined like this could easily turn a profitable year into a significant loss for many companies.
The reason that the Government and the Patent Office are reluctant to see text in the Directive to enforce interoperability is again that it has an impact on other sectors—in particular telecoms—where patents do seem to be working the way that they were supposed to, and an interoperability clause in the Directive could result in damage to the telecoms industry (where a lot of work is actually directly concerned with interoperating between different signalling protocols—something which, as someone who used to work for a telecoms firm, I can certainly understand).
Finally, there was a question from one member of the audience about the status of software developed for charities and whether it was right that such software should be subject to the patent system even where a “technical contribution” was held to exist. Frankly, I think it is unlikely that this would be a problem in practice, given the explanation of Peter Hayward on exactly what was and was not supposed to be patentable, but it is nevertheless an interesting point and perhaps some thought should be given to protecting charities from patent infringement claims (although how this could be done without damaging the value of legitimate patents I am not sure).
Anyway, I think the conclusion that I drew from the meeting was that the Government, the Patent Office and the majority of us are really all on the same side, contrary to the FFII propaganda, and that although some fine-tuning may be necessary to ensure that we are properly protected from the type of drift towards U.S.-style patentability that previously occurred in the EPO, a lot of the actual issues that have been raised are really due to people misunderstanding the law as it stands today.
Finally, I'd like to publicly thank Peter Lawrence, Lord Sainsbury, Peter Hayward and Steve Probert for organising, attending and speaking at the meeting, and for listening to the concerns of those present.