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Don't change European software patent rules, say CIPA

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

A press release from the Chartered Institute of Patent Attorneys (CIPA) in the UK today affirms its position on computer software patents in the light of the European Patent Office's Enlarge Board referral in Case G3/08 (see earlier post here). The deadline for submitting amicus briefs is today. Says CIPA:

"... the Chartered Institute of Patent Attorneys has urged the EPO?s Enlarged Board of Appeal to reject calls to make radical changes to the rules on patenting computer programs. Changes to established practice would cause the kind of confusion that exists in the USA ...

Chairman of CIPA?s Computer Technology Committee, Simon Davies, says that any major changes to the established practice ?would create confusion in the computer industry throughout Europe.? [Quite true -- but failure to change current practice appears to have created a present state of confusion too. Which is better? Our current, known, confusion, or future unknown confusion?]

?Although computer programs as such are not inventions, under EPO rules,? Davies explains, ?this does not necessarily exclude patent protection for an inventive product or process which is implemented by a computer program. Over many years, the EPO Boards of Appeal have developed a carefully formulated approach in which patents are granted for a technical solution to a technical problem. This has now become well-established practice before the EPO in general.? [Is it agreed that the formula is one which is susceptible of reliably consistent application to any given set of facts? Does it need (i) to be left completely alone, (ii) to be gently fine-tuned or (iii) to be supplemented with further clarificatory guidance?]

According to CIPA, the situation at the EPO is in stark contrast with difficulties in the USA. For example, the State Street Bank decision from the US Court of Appeals for the Federal Circuit caused a big increase in the range of subject matter for which a patent could be obtained. However, the recent Bilski decision from the same court represents a potentially significant contraction. These two decisions have left US patent law in a state of great uncertainty [This may be true -- though some US patent experts disagree -- but it doesn't really address the problems in Europe].

There have also been problems in the UK, where the Intellectual Property Office has issued four different Practice Notices relating to computer-implemented inventions in the last five years. CIPA is not in favour of such frequent changes, as patents have a lifetime of up to twenty years. [Is there something missing here? It looks as though perhaps CIPA would be more in favour of frequent changes if the maximum patent term were different]

CIPA?s submission to the EPO states that ?the current approach provides a sensibly balanced and legally coherent treatment of excluded subject matter that benefits both applicants and third parties. This approach should continue.?

The IPKat appreciates the need to limit change in the interests of stability and predictability, particularly when each change is followed by an empirical stage in which patent applicants and litigants have to pay for the privilege of finding out what those changes mean in practice. But Merpel wonders whether the crucial criterion is not that of either stability or predictability, but of whether the present system works so well that no change is justified in terms of functional utility.

Full post as published by IPKat on April 30, 2009 (boomark / email).