Europe Taking Up Question of Software Patentability

(MoneyWatch)  This must be a day for patent news. Earlier, the U.S. Court of Appeals for the Federal Circuit reaffirmed the previous In Re Bilski case so that, barring some reversal by the U.S. Supreme Court, a huge number of business method patents will be invalid, including software patents and financial method patents used in the financial services industry. Ironically, it looks as though the European Patent Office is bringing in its big legal guns regarding the contentious issue of software patents:

The European Patent Office (EPO) has asked its ultimate legal authority to look at the European Patent Convention (EPC) and issue advice on the patentability of software. The EPO said that such advice was necessary to ensure the uniform application of the EPC.EPO President Alison Brimelow has referred the contentious issue to the EPO's Enlarged Board of Appeal, the body which gives the EPO legal guidance. The Board is independent of the operation of the EPO and takes as its only authority the EPC itself.

Europe faces a problem that while the EPO can grant a patent, individual countries in the EU must acknowledge their validity, and the member states vary significantly in how they view software patents.

The topic is controversial in part because software companies often want the ability to patent their intellectual property, as copyright only protects the code as written. Find another way to represent a process or algorithm and you've worked around the copyright. But a patent covers the underlying function, not the particular approach to coding. Patents offer far stronger strategic value to software developers. And yet, others argue that software is too vague and patents in that area essentially allow people to own ideas. The proliferation of software patents in the U.S. has led to a veritable minefield through which any developer must carefully thread a path to develop something new, which discourages innovation.

What makes the entire situation complex is that, on one hand, software doesn't qualify for EPO patents. Nevertheless, the EPO and various patent offices of member states have granted thousands of software patents already.