As reported by ZDNet in an article titled EC: Software is not patentable, the European Commission seems to have reversed its position on software patents. Previously, the European Parliament’s decision favoring the invalidation of software patents was ignored by the European Commission, which issued statements suggesting it would use the upcoming Community Patent legislation to legalize software patents. It is thus with surprise that organizations like the Foundation for a Free Information Infrastructure note the EC’s new position, that the European Patent Office will “apply and be bound by a new unitary Community law with respect to Community patents”.
The EC’s statement indicates “The draft Community Patent regulation confirms in its Article 28.1(a) that patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC [European Patent Convention], may be invalidated in a relevant court proceeding.” At first blush, this looks like a 180 degree turn-around for the EC, eliminating software patents from the realm of EPO issuance. That’s not quite the case, though.
Based on the EC’s statements, it looks like software is still entirely patentable. This actually still allows for software patents to be requested and granted: it just allows a sufficiently filthy-rich litigant to overturn the patent in court. A potential side effect of this method of ex post facto “invalidation” of patents might be the effective shutting-out of economically less-powerful parties from using patented software while larger organizations will have free reign.
Think about it for a moment: a corporation that holds a software patent might leave other large organizations to their own devices, with all the free license they need to make use of the patented technology. The patent-holding corporation need only threaten litigation for individuals and organizations small enough to be substantially financially harmed by the court proceedings regardless of whether they win or lose. Attempting to take larger organizations to court would simply result in loss of the patent, because the larger organizations have the means to fight it, but those smaller organizations and individuals who do not have such financial means can be quite easily strongarmed by means of a software patent that can only be invalidated by expensive court proceedings. This allows for a protection racket to arise, wherein back-room deals serve to provide for easy use of patented software technologies for huge corporations and required licensing for any bit player on the market. Ultimately, the whole thing looks like an impressive scam intended to maintain power-consolidation status quo, further strengthening the strongest software industry corporations and preventing financially weaker challengers from, well, challenging.
This, obviously, would effectively screw open source software projects that don’t have significant corporate legal backing.
In that light, this “new” position of the EC makes perfect sense. The large corporations both want to be able to patent their software and want to be able to use others’ technologies without having to pay for them, and they all want the little guys to be shut out of the market. Now, they’ve found a way to do it: allow software patents to be overturned if sufficient money is available to pursue the matter in court, but otherwise allow patents to be registered and approved, providing a means by which they can be enforced by threat of litigation. It’s enforcement by attrition.