Polish official stymies European software patent move

Von Stephen Bell

Supporters of free software are thanking the Undersecretary of State at Poland"s Ministry of Science and Technology, Wlodzimierz Marcinski, for blocking a crucial European Union vote on adoption of software patents on December 21 last year. This, says the Free Software Foundation, makes him "single-handedly responsible for keeping Europe software patent-free".

However, the question has not been finally settled. Marcinski won only a postponement of the decision and a re-examination of its wording. The patent proposal is, strictly speaking, broader than pure software; it relates to "computer-implemented inventions". Marcinski wants the wording tightened up, so patenting of "pure software" and business procedures such as Amazon"s one-click ordering will not be permitted under European Community law.

Among those opposing patents on software is Linux inventor Linus Torvalds, who co-authored an "appeal" to the European Union council in November, saying far from protecting software developers the proposed law would inhibit their creativity because they would be continually afraid of trespassing on someone else"s patent. Crucial terms in the legislation were capable of too broad an interpretation, Torvalds said. He expresses a preference for copyright as the appropriate means of protection.

Proponents of the proposed regime argue that Torvalds and his colleagues are over-simplifying the situation, and that the proposed law would still have permitted fair re-use of ideas expressed in software.

Dr John Collins, partner at British patent attorneys Marks and Clerk, said in a statement: "Torvalds and his supporters lack a fundamental understanding of intellectual property rights as they seem to be unaware that copyright can only protect software code, and not software inventions. Allowing for patent protection on software inventions is a requirement of the World Trade Organisation"s Trips agreement which states that patents must be available in all fields of technology.

"The open source community (apparently) believes that software can be entirely separated from mechanical and electronic inventions," said Collins. "In reality there is no neat dividing line and the (EU) directive seeks to provide as much clarity as possible. For instance, there are many digital processing innovations which lie at the heart of technology such as digital television or MRI scanners, or where software has made improvements to existing technologies such as X-ray imaging."

These clearly qualify as a "technical contribution" -- one of the basic principles for patent protection, he says.

Other sources credit Marcinski"s objection with clearing the way for use of open source software in European local government bodies such as the Munich city council, which has been waiting for a clear software patent decision before proceeding to migrate its administrative systems from Windows to Linux.

However, a legal study of the patent question commissioned by the council earlier in 2004 concluded that the risk of an infringement was small and would be the same with any software, not just open source products.