Firms losing out by not filing patents

12-03-2008

by Ciara O'Brien

By failing to patent their software in Europe, firms may not be fully capitalising on their ideas, according to an Irish patent and trademark expert.

Michael O'Connor, patent attorney at patent and trademark solicitors Cruickshank, told ENN that there is a common misconception that software is not patentable at the European Patents Office (EPO). Although companies may have had applications refused in the past, he explained that the situation had changed considerably in recent years.

The Irish firm is trying to educate businesses on the value of European patents, targeting US firms who may want to protect their software in Europe, in addition to focusing on the indigenous software market in Ireland. O'Connor said that the US market is growing in importance for the firm, but the company is mainly aiming at those who are interested in protecting their intellectual property via the EPO. "That's where our real expertise lies," he said.

There are good reasons for the current drive. According to figures supplied by Cruickshank, the European Patent Office grants about 56 percent of all patents that are filed. However, when it comes to software patents, the grant rate drops to just 20 percent. This is partly due to more stringent and detailed requirements for European software patents.

"It's not just the US market we are targeting," he said "Ireland is the second largest exporter of software in the world. There are a lot of US multinationals here, and there is a huge software industry in Ireland."

"Across the software community as a whole there is a common misconception that it is not patentable. We're trying to spread the word that at the EPO, it is patentable."

O'Connor explained that the misconception has arisen due to a number of reasons -- several of which can be directly attributed to the EPO itself.

"Historically the EPO was less friendly to the patentability of software than in the US Patent and Trademark Office (USPTO). Also, the wording of the European Patent Convention is quite misleading -- it says that programs for computers are not considered inventions. However, this is subsequently qualified in the Convention," he said.

"They took a hard stance against the patenting of software, but over the past 20 years practice has evolved considerably."

Those companies, both Irish and international, that fail to file patents in Europe are in danger of relying too heavily on copyright, he said. "You are losing the most robust protection you can get," he said.

To educate Irish firms of the benefits of European patents, Cruickshank is also offering an hour-long consultation with an intellectual property expert to all software companies in Ireland, free of charge.

The company is also putting in its time abroad; O'Connor recently addressed the Association of University Technology Managers (AUTM) Annual Meeting in San Diego, which more than 250 companies and universities, including Yahoo, Microsoft, MIT, UC Berkeley and Stanford attended.