The European Commission is expected to push ahead drafting a Europe-wide law on software patents, a source in the European Union's executive body said last Friday.
A consultation process with the software industry and the open-source community that began last October closes at the end of this month.
"There is no final decision yet but it is quite likely we will push ahead with a directive," said a source in the internal market division of the Commission.
Euro harmonization The directive will use the European Patent Office (EPO) model as a starting point, the source said. At present, there are two parallel patent systems in Europe: EPO patents and national patents. "We are trying to harmonize and codify the law on software patents across the EU," she said.
The EPO laws are seen as less protective of patents than those of the UK and Spain, but more than the national patent laws of Germany, said Thomas Vinje, a partner in the Brussels office of US law firm Morrison & Foerster.
This would mean that Germany will be forced to tighten up, and the UK and Spain will have to loosen their protective grip over patents.
Less extreme than US The Commission source said the directive "won't go nearly as far as the US extreme" in favour of the patent holder. "They take a very wide view of what can be patented in America. For us, a patent will only be granted when the software is linked to a real invention, like an X-ray machine or an automated teller machine - something outside of the computer," said the source at the Commission.
The one-click online shopping patent granted to Amazon.com in the US "could not be patented under our system," she said.
Open-source concerns The Commission has listened to the open-source software community and believes it has gone a long way towards meeting their concerns over software patenting. "The EPO is already granting software patents here and the open-source community survives perfectly well," she said.
Open-source gurus like Richard Stallman have warned Europe not to go down the route the US has taken. He argues that software patenting actually stifles competition and hinders innovation.
Others argue that swift action is needed to remove the current ambiguity and legal uncertainty surrounding patentability of software-related inventions. They say that the absence of such patentability risks losing Europe the global innovation race in this high-technology sector.
Development fears When launching the consultation process last October, the Commission said: "The absence of EU-harmonized legislation may be a potential barrier to industrial growth, competitiveness and the development of the internal (EU) market."
Patent law must not be confused with copyright law. Copyright law protects expression. For software that means the zeroes and ones that later become 'on' and 'off' program instructions, Vinje said. Microsoft Word is copyrighted.
Patents protect ideas. In the US they also protect business methods, such as Amazon's one-click online shopping technology. "Patenting business methods is quite controversial ground even in the US," Vinje said. "Europe argues that the US has gone too far here."
Patents generally last for 20 years from the date they were filed, while software copyright protection continues for 75 years after the death of the owner, Vinje said.