Should Software Developers be worried about the CII Directive?

Email inboxes of MEPs are receiving the latest wave of anguished pleas to reject or change the proposed directive on Computer Implemented Inventions. The anguish may be genuine, but most of it is unnecessary.

The situation. It has always been possible to get a patent for technical apparatus or methods. A method is often presented in the form of a set of steps, for example to control a particular apparatus or to complete signal processing steps in electronics. If a computer program is the means by which the apparatus is made to perform the method, then someone selling the computer program always has been liable for what is known as 'contributory infringement', which basically means supplying the essential element of a patented invention. If this has not troubled programmers before, changing the liability from 'contributory' to 'direct' infringement should not trouble them now.

So why make the change? More and more electronics now has the form of customised software loaded on to standard equipment in order to achieve a customised method/performance. There is a growing tendency for the method steps (but not the exact code) of the software to be copied in lesser developed countries and sold into the developed countries via intermediaries. Contributory infringement does not operate in circumstances when there is an intermediary. This can also happen between Member States of the EU. This is a serious threat to jobs, not just in Europe's large electronics industry but also to the numerous SMEs who actually make up 70% of CII patentees.

In the US there are patents for all kinds of software. True, but that is the US and they have different laws and do not require that the software relate to a technical method. With the safeguard written into the Common Position that a software claim is only allowed when it performs the method also claimed in the same patent, this is not really a stand-alone claim to software, and in that respect it is actually more restricted than has been recent EPO practice.

What about patents for compressing and inflating data? Patents for methods like this have been around for some time, the objections arose only when claimed in the form in which they are sold, as software, even though the contributory infringement scenario applied to the method. Some now see the opportunity to use the CII directive to reverse established practice and prevent this type of patent in any form - method or software. Motivation varies. Some is resentment of Microsoft, some is not wishing to have to pay licence fees for programs, some is concern that the level of inventiveness in the patents that have been allowed is not high enough. The last if these is a significant point, but it is not unique to CII patents and the solution lies in better monitoring (as in some of the amendments) not in preventing protection for the rather larger number of substantial and economically vital inventions.

So we have software patents already? Yes. The EPO decided that it would allow claims to 'software products' when there was a technical effect i.e. essentially to a technical method performed by the operation of software. There has been concern in some countries that this offended against the European Patent Convention exclusion of 'computer programs' from patentability. At the same time others argue that the exclusion is further defined as only relating to the program 'as such' and that this means programs are patentable when there is more than just straightforward encoding - which there is when an inventive technical method is present. The Common Position confirms the latter interpretation and therefore gives inventors certainty over the form of claims allowed and their enforceability. It can also be argued that since both method (or apparatus) claim and software claim have both to be present and are causally linked, the software claim is not standing alone and therefore is again more than simply a program 'as such'.

But clients are now asking for guarantees. This is true. There has been so much misinformation about the directive introducing software patents that clients have also been misled into thinking that something very different and like the US system is going to happen. In due course they will be reassured when they find that nothing has actually changed (which is the case with or without the directive!). If the reporting about the proposal had been more accurate and there had not been scaremongering this problem would not have existed.

How many jobs are at stake? If a directive came into force including the type of restrictions favoured by FFII, the Rapporteur and the Greens, millions of jobs in the electronics industry (large and small) could be at stake. If the directive comes into force similar to the Common Position there will be no change from the present, since that is what it validates.