The definition of technical contribution will have to be tested in the European Court of Justice before anyone can say exactly what the European Directive on computer implemented inventions means. Before it gets to that stage, however, the government and the UK Patent Office have agreed that the issue needs to be explored more fully, and say they are considering setting up a workshop to "deconstruct" the meaning of the term.
This morning (Tuesday), Patent Office officials met with members of the public who had written to their MPs to raise concerns about the current form of the directive. Lord Sainsbury, minister for science and technology, also attended.
The meeting tried to address some of the more contentious issues in the current form of the directive. Peter Lawrence, director of policy at the UKPO, described the meeting as "lively. Once we'd finished our presentations there was a forest of hands, keen to participate."
The definition of "technical effect" dominated the discussion, as it did in the press conference later.
Why do we need a directive at all?
The official line from the UKPO is that the directive is needed to stop Europe drifting toward as US-style "patent everything that is code" approach. It argues that current legislation is not clear enough, pointing out that the UK's legislation currently has no requirement that software have a technical effect.
This requirement is based purely on UK case law: rulings from judges that have gradually clarified what can and cannot be patented. Including the word "technical" in the legislation puts a stake in the ground and will make it easier to challenge patents that might not show a technical contribution, the UKPO argues.
As to why the term is not more fully defined, the UKPO says its hands are tied by government objectives that said the law did not need to be changed, only clarified. "We tried to come up with better definitions," said Peter Hayward, a divisional director at the UKPO, "But each one created more problems," in part because a very clear definition of technical effect would have implications for other industries.
"We had to stick with the wording used by the courts because anything else risked changing how the courts have been interpreting it. The courts know what the term means, and if we have to keep the law where it is, it is generally safer to use the words the court has used - just ask a lawyer."
Tony Howard, recently returned to the UKPO after being seconded to the European Commission, said: "Clarity will only come from the first test case in a European court."
Reaction from the crowd
The UKPO spokesmen acknowledged that they had failed to win the trust of the open source community. "People don't believe we don't want to change things," said Lawrence. He added that he had not hoped to change the minds of the anti-patent lobbying groups at the morning's meeting.
It is as well that he did not, because he would have been very disappointed. Outside the DTI after the press conference, several of the attendees from the mornings meeting expressed their dissatisfacton with the arguments of the UKPO.
Rufus Pollock of the Open Knowledge Foundation said: "There seemed to be a lot of confusion about what did or didn't constitute a technical effect. Someone asked whether it would be possible to invent something patentable sitting in front of a stand-alone PC, with no internet connection. First they said no, then they said yes. It is still very confused."
One Register reader who was at the morning session told us: "They asked 'did we get it wrong?' and were told 'in parts, yes'. They responded with 'don't know but we'll see what we can do about that'. So a good meeting, but possibly too late. But at least they invited us."
What happens now
The current directive will, in all likelihood, be adopted as a "common position" in the next week or two. Some of the countries which originally voted to back the draft have recently experessed doubts about the wording. However, they are very unlikely to change their official positions.
"There is a very strong political imperative not to go back," said Howard. "It would set a terrible precedent."
The next stage is the second reading by the European Parliament which has three to four months to reach a position on its second reading. There are three possible outcomes. It could accept the common position, it could reject it out of hand, or it could vote to pass amendments. Ordinarily, only the amendments proposed during the first reading could be proposed again now., but since the directive has straddled two parliaments, this limit has been waived, and other changes could yet be introduced.
If the Parliament votes to amend the directive, it then goes back to the council for their second reading. They too have three to four months to come to a decision, which would most likely take us into the UK's presidency.
The Council of ministers of the European Union can accept or reject the amended version. If it rejects it, the directive goes to concilliation, where an all-state working group tries to hammer out a version acceptable to all sides. This can fail, but is most unusual. If an agreement is reached here, both the parliament and the council must accept the draft, or the directive is dropped.
"The last parliament had a very different view from the council of what the directive should look like," said Howard. "But this is a new parliament. So it is impossible to know what will happen." ®