Microsoft and Linux trade patent words in Europe

Enlarged Board

The reason this has now come to a head in Europe is because the Enlarged Board of Appeal of the European Patent Office has been debating whether software patents should be enforceable in EU counties. The battleground is Article 52 of the European Patent Convention, which specifically states what's excluded from patent protection.

Among these: discoveries, scientific theories and mathematical methods, schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computers, and also presentations of information. However, it seems, computer programs are being judged to be worthy of inclusion of patent protection in separate legal cases. Inevitably, the decision's been taken to decide once and for all whether software is covered.

In its joint filing, Microsoft seems comfortable with the current regulatory system and the expanding definition of Article 52 to include software and computer programs. Microsoft's associate general counsel for intellectual property policy Richard Wilder said the current system provides "workable and predictable legal framework for determining what subject matter is eligible for patent protection under European law.

"We believe it is of critical importance that this stable legal framework not be disrupted," he said in a statement given to The Register.

On the other side of the debate are open-source companies. Red Hat and Canonical, steward of Ubuntu, filed separate briefs arguing against the recognition of patents in software. Ubuntu said debate has overly focused on a potential clause in Article 52 that could be interpreted as allowing software and computer programs to be covered and asked the law be interpreted in a "simple fashion".

According to Canonical, computer programs should be excluded because patents can allow companies to exploit them to create monopolies. Canonical argued a number of large and wealthy organizations have used their significant financial means to build up very extensive patent portfolios ostensibly for protection but leading to the "self perpetuating cycle of patent acquisition and enforcement."

Red Hat, in its brief, argued acceptance of software patents will invite costly and harmful legal action, and will trip up software developers.

"Software patents are generally claimed in relatively abstract language, compared with patents concerning other subject matter, and as a result their boundaries typically are vague and ill-defined," Red Hat said. "Therefore it is often not possible to be confident that a particular patent does not read on a particular new product."

According to Red Hat, software patents in the US are more than twice as likely to be the subject of a lawsuit than other patents and account for one quarter of all patent lawsuits.

Apparently, sitting on the fence was patents-powerhouse IBM. The company, which year-after-year beats every single other company to be awarded the most patents in the US, has called for "a more clear and straightforward way" of applying Article 52. "To achieve this, the board should confirm that a claimed invention must have a technical character that can be conferred by the inclusion of any technical features," IBM said.

That sounds like IBM's arguing that the system that awards patents needs to be changed by improving the process or examination of prior art and research to determine if patent claims are truly unique.

Microsoft's done much to reach out to open source. It has made Linux and open-source software work better on Windows, released its code under OSI-approved licenses, and sent ambassadors to Linux and open-source events.

But there remains a fundamental belief inside the company not just in patents in software, but that the current system in Europe - the system that others regard as posing a problem - is working and the status quo is fine. The other side believes just as firmly that patents in software are wrong and dangerous, and the creeping form of enforcement is slowly locking up the market to the benefit of the big companies.

Unless - and until - one or both sides in this debate makes a fundamental philosophical shift or there is a move towards the middle, they will continue to deal only selectively and engagements will be on a tactical basis. And given the polemical nature of the differences, one side is likely to be left sorely disappointed by the EU's final decision.

You can download the Canonical, IBM, and Red Hat submissions here, here and here (warning PDF). Submissions are also available here. The Microsoft amicus was not available online at the time of going to press. ®