[ANSOL-geral]Patentes : artigo no The Economist

[Hugo Nogueira]

http://www.economist.com/business/displayStory.cfm?story_id=2043416

   Software patents
   A clicking bomb
   Sep 4th 2003
   From The Economist print edition
   An explosive row over how to protect intellectual property in Europe

   WIDGET inventors file patents. Prose and pictures are protected by
   copyright. But what about a new piece of encryption software or an
   internet business method, such as Amazon.com's "one-click
   shopping"? Should they also be covered by patents, or do copyright
   and trade secrets suffice?

   These questions underlie a heated controversy in Europe pitting
   open-source advocates, software developers and academics against
   big software firms, intellectual property lawyers and the European
   Commission. Because of the row, the European Parliament has again
   postponed the first reading of a directive on computer-related
   inventions, scheduled for this week. And it remains to be seen
   whether the parliament will tackle the controversial proposal when
   it reconvenes on September 22nd.

   The issue of patents for software and business methods has been
   causing a stir in America ever since the Patent and Trademark
   Office started issuing patents on internet business methods in
   1998, most famously that for one-click shopping. Proponents argue
   that these patents provide the necessary incentives to innovate at
   a time when more inventions are computer-related. Critics claim
   that such intellectual monopolies hinder innovation, because
   software giants can use them to attack fledgling
   competitors. Moreover, as software is often built on the
   achievements of others, writing code could become a legal hurdle
   race. By analogy, if Haydn had patented the symphony form, Mozart
   would have been in trouble.

   If the debate is more heated in Europe, it is because the directive
   in question is supposed to achieve two things at once. For one, it
   aims to harmonise how computer-implemented inventions are dealt
   with across the European Union--in order to avoid situations in
   which an invention is protected in one member state but not in
   another. Now, although many patents are centrally awarded by the
   European Patent Office (EPO) in Munich, national courts have the
   final say over a patent's validity. In Britain, business methods
   are generally not patentable, but they can sometimes be patented in
   Germany. The EPO, by the way, granted Amazon a patent in May
   covering computerised methods of delivering gifts to third parties,
   a descendant of its one-click patent in America.

   Such cases illustrate the directive's other thrust. The European
   Commission wants to avoid the American situation, in which case law
   drives authorities to issue computer-related patents all too
   easily, in particular for business methods and
   algorithms. Software, say to control an X-ray machine, should
   remain unpatentable, but the entire apparatus--the combination of
   software and hardware--could be protected by a patent. In the words
   of the directive, to be patentable an invention must make a
   "technical contribution"--meaning "a contribution to the state of
   the art in a technical field which is not obvious to a person
   skilled in the art".

   Unsurprisingly, this definition is particularly
   controversial. Larger software firms in the Business Software
   Alliance are happy. Smaller firms and open-source lobby groups,
   such as the Foundation for a Free Information Infrastructure, are
   up in arms. They think the directive's lack of clarity will make
   American-style patents possible, and are arguing for a more
   watertight definition.

   Arlene McCarthy, the rapporteur of the European Parliament's
   committee for legal affairs and the internal market, has now
   proposed an additional test for patentability: an invention must
   teach a new way to use "controllable forces of nature" (really) and
   have an "industrial application". This aims to strengthen the
   exclusion of pure software and business methods.

   Finding the right balance will not be easy. Patents can be a spur
   to innovation, but they can also be an obstacle, and the great
   advantage of digital technology was supposed to be its very
   malleability. Moreover, there is another headache. The harder it is
   to patent computer-related inventions in Europe, the wider will be
   the legal gap with America.