Linus Torvalds gets software patents wrong, says attorney

Dr John Collins, partner at Marks & Clerk, the UK's largest firm of patent and trade mark attorneys, argues that the latest version of the Directive, far from broadening what can and can't be patented – as asserted by the Polish Government and open source developers – actually restricts what can and can't be patented.

Linus Torvalds, creator of Linux, the open source operating system, issued a statement last week which blasted the EU proposals as "deceptive, dangerous and democratically illegitimate," warning that the Directive would broaden the area in which patents would be granted. Today, Dr Collins hit back: "This is simply a false assumption," he said.

Dr Collins continued:

"The original proposal was solely designed to clarify and unify existing practice in the EU. However, the current version – as a result of amendments made by the European Parliament – will result in patent holders in certain areas losing a significant element of protection meaning that some existing patents will become worthless."

The proposal is that an interoperability clause, which is used in respect to software code protected by copyright to allow de-compilation without infringing the copyright, will extend to patents on software inventions. This, says Dr Collins, will mean that many innovations in protocols in the telecoms industry, for example wireless-to-wireless communication or wireless-to-landline communication, could be copied without infringing the patent.

Dr Collins added:

"Torvalds and his supporters lack a fundamental understanding of intellectual property rights as they seem to be unaware that copyright can only protect software code, and not software inventions. Allowing for patent protection on software inventions is a requirement of the World Trade Organisation's TRIPS agreement which states that patents must be available in all fields of technology.

"Moreover, the open source community believes that software can be entirely separated from mechanical and electronic inventions. In reality there is no neat dividing line and the Directive seeks to provide as much clarity as possible. For instance, there are many digital processing innovations which lie at the heart of technology such as digital television or MRI scanners, or where software has made improvements to existing technologies such as X-ray imaging.

"Few would argue that these applications of software innovation do not qualify as a 'technical contribution' – one of the basic principles for patent protection.

"It has been possible to register software patents in the UK and Europe for over 20 years and so any talk of a potential liberalisation which would allow for a floodgate of spurious patents is nonsense.

"The Directive was originally proposed to provide uniformity in the EU and ensure that all member states took the same approach to the patentability of software inventions so that innovators could be certain that their patents are valid throughout the EU. We should not allow this objective to be undermined."