letter to the Times on 12 Aug 2004 - unpublished.

12 Amberley Court,
Overton Road
London
SW9 7HL

(020) 7274 3989
07710 864 775

Sir,

Your business supplement yesterday on the proposed European Community Directive on intellectual property omits to mention that the directive will permit the patenting of "computer implemented inventions" or, in a word, software. Under existing law software is basically protected by copyright - you write it, you own it, and then you get to use it or even be paid for it.

Under the new proposal software will be patentable as an invention provided it has a "technical effect". This could apply to any aspect of a system, from screen layouts and interfaces to algorithms and file formats, and at any level of abstraction, from byte compression to business protocols.

Defending the ownership of "your" software against EBP (expropriation by patent) involves research, legal advice, and course much time and money. There is no presumption of innocence. You may try to prove that the words of a patent do not apply to your code, or that the claim is invalid because it is obvious, or there is relevent "prior art". None of these steps is as simple, clear or cheap as simply proving that you or your supplier wrote the code.

Who benefits from the introduction of software patents? In the US, which has had software and business process aptenting for some time, large companies like Microsoft have substantial patent portfolios and the resources to offer their customers IP indemnities. Smaller beneficiaries like PanIP are not software developers, but lodge or buy patents and then target larger or smaller businesses depending, it seems, mainly on how plausible a threat they can muster.

Who loses? Any business which relies on a clear title to software which they have developed or licensed, and on which they daily depend.

The potential costs of software patenting to British business are, I suspect, almost unquantifiably vast. This doesn't mean they should be ignored.

Francis Norton.