The European Patent Debate: Who Decides What's a Patent?

NEWSMAKER The key issue at hand before European Union legislators is whether software, by definition, qualifies as intellectual property worthy of patent protection. But the issue has become so sensitive in European politics that neither side of the debate is actually arguing the issue directly. Instead, they're arguing parallel or related issues, in the hopes of garnering public support that would result in the passage of new laws that would incidentally codify their basic points, perhaps without too many people noticing.

So one of the big incidental issues facing the EU, especially with regard to running a government whose mandate is to speak 21 languages is this: When you pass a law saying certain other parts of the law only need to be written in three of those languages, the law you pass must be explained to those who speak all 21 languages. Which means the enforcement of the three-language law must be as multilingual as the system it would try to replace.

This is precisely the problem facing the European Union today. The way the EU eventually chooses to resolve what some are now calling an "intellectual property crisis" could impact the way corporations everywhere interpret the rights of developers to the creation of software - especially if those corporations do business worldwide. If you sell software over the Internet, congratulations, you do business worldwide.

"It is D-day for Europe when it comes to intellectual property protection," pronounced Charlie McCreevy, European Commissioner for Internal Market and Services - the EU's chief legislative proponent for an authoritarian patent authority covering all of Europe. "We are facing continuous, and not always equal competition from the US and Japan, but also from emerging economic super-powers like China or India."

Since 2003, EU member nations have abided by a law stating that patents need only be submitted to the European Patent Office in just three languages: English, French and German. But throughout the EU, there remains today no single body for adjudicating the legitimacy of patents throughout Europe. Instead, the Office delegates the authority for granting patents to a body called the European Patent Organisation (which sadly even has the same initials, at least in English, to compound the confusion), whose jobs are mainly to grant patents and keep track of them.

Keeping track of them means being ready to provide patent information to the courts that request it. But for now, these are the individual patent courts of the various member nations, not all of whom speak English, French or German. As a result, the second EPO mandates that the claim portion of each patent application filed with the first EPO must be translated into all 18 other languages.

When you consider the job of translating all three versions of each claim into all eighteen other languages, you get a clear picture in your mind of the tangled web they weave.

The solution, as proposed by Commissioner McCreevy, is something called the European Patent Litigation Agreement, which is now in the proposal stage. EPLA would establish what is now being called a Community Patent, applicable to all member nations equally regardless of its language of origin. It would be enforced through an independent organization -- a sort of reinforced EPO -- that would not be a government agency, though it would be delegated independent adjudication authority by the EU government.

Critics, however, are saying the "Community Patent" is the latest moniker for a system that would in effect make software a patentable entity, thus overriding Article 52 of the (non-binding) European Patent Convention (EPC), which distinguishes the culminations of digital enterprises from "inventions."

Officially, Europe as a whole does not recognize software as worthy of patent protection, even though member states do tend to utilize their own interpretations of intellectual property, and are even guaranteed the right to do so under current EU law.

The adoption of EPLA, say supporters, will bring the EU system more in concordance with the legal systems of the software producing superpowers to which McCreevy referred: the US, China and India. Conceivably, software publishers there might not want to do business in countries where their principal works can be, from their vantage point, pirated, and then mass-produced in the pirate's country of choice. Here, the irony of China taking a position against international piracy is glossed right over.

Next: On the right...the left. On the left...the center.

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