After nearly a year and a half of debate, the European Commission issued a proposal on February 20 to clarify software patent laws in Europe. The directive, which specifies that software must make a “technical contribution” in order to be patentable, is good news for the bioinformatics industry, according to some observers.
Robert Harrison, an attorney at German patent law firm Hubert & Sch ssler, said that the proposal is “excellent” for bioinformatics. “It’s quite clear that biotechnology inventions are technical. It’s quite clear that inventions related to the processing of information are technical,” he said.
The directive set out to address the ambiguous nature of current European patent law. While the European Patent Convention excludes computer programs “as such” from patentability, the national patent offices of EU member states and the
European Patent Office have granted patents on tens of thousands of computer-implemented inventions. “There’s always been legal uncertainty,” said Harrison, who noted that the proposal “will say quite clearly that computer-implemented inventions can be patentable, and that’s brilliant for bioinformatics.”
Currently, most inventors opt to protect their bioinformatics software through copyright or as a trade secret, but neither of these approaches provides the same level of protection as patents do. Those organizations who have secured bioinformatics patents in Europe — Lion Bioscience, the German Cancer Research Center, the European Molecular Biology Laboratory, Affymetrix, and Incyte among them — have done so only based on case law in the lower courts, making the proposal important because “it will protect software that’s already been patented,” according to Harrison. In addition, the new policy could stimulate patenting among bioinformatics startups who recognize that “venture capitalists view patent protection as assets.”
However, some view the directive as more of a political statement than a course of action. “I don’t think the commission directive will make a drastic difference to EPO practice and procedure in this area,” said Duncan Curley, a solicitor at British law firm McDermott, Will & Emery. While the directive “formalizes and clarifies” the commission’s stance on the topic, it offers “no drastic change in the law. In fact no real change in the law that you can put your finger on,” Curley said.
Some detractors have said that the directive failed in its objective to clarify the existing ambiguity in the law at all. On his BustPatents website, outspoken critic of trivial software patents Greg Aharonian dismissed the proposal’s definition of a “technical contribution” — “a contribution to the state of the art in a technical field” — as “circular nonsense.”
Even Harrison noted that the directive has its drawbacks. One flaw, he said, is that it doesn’t address the “presentation of information” such as scatter plots or the visualization of protein structures. In addition, the proposal only protects software embedded in a machine or operating system, but not standalone software available on floppy disk, CD-ROM, or via the internet. This failing makes the proposal a “step backwards in the European practice,” according to Francisco Mingorance, director of European public policy for the Business Software Alliance, a lobby group for the software industry.
Furthermore, Harrison noted that there is a “small lobby” arguing for broader protection than the “technical” limitation provided by the current proposal. This would open the door to computer-implemented business model patents in Europe, which are currently excluded from protection.
Most estimates for seeing these issues move through the discussion process and into law range from three to five years.