PATENTS: Patents are valuable to many companies based in the Republic: Hewlett-Packard applied for more than 5,000 in 2001, while IBM is the leading company of patents world-wide.
A patent grants a 20-year monopoly on how and when an invention can be exploited. The criteria for granting a patent are complex, but the rewards can be vast. In 2001, sales of patent-protected drug Viagra, which is manufactured by Pfizer in Cork, totalled more than $1.5 billion (€1.7 billion). British Telecom (BT) is hoping to reap similar rewards as it asserts a US patent to apply to internet hypertext links. Dell protects its method of building and testing PC's with dozens of patents, thus protecting Irish jobs.
Most of the aforementioned are US companies. It costs about €10,000 to get a patent in the US, compared to €30,000 in Europe. There are wider categories of technology for patents available in the US, including "computer-implemented" inventions.
Amazon.com has a patent for its "one-click" purchasing method, which was successfully asserted against rival online bookseller, barnesandnoble.com and gave amazon.com a crucial advantage in its battle to survive and thrive online. A variety of online services are subject to US patents: anyone thinking of setting up an online travel agency should look at US patent No. 6,256,639, which was assigned to IBM for: "Providing internet travel services via bookmark set".
The availability of computer-related patents has given the US an advantage. A study for the EU Commission uncovered the availability of such patents has, "helped the growth of computer program related industries in the US". Confusion reigns as to whether computer implemented inventions are patentable in Europe. The European Patent Convention (passed in Irish law as the Patents Act, 1992) does not allow programs to be patented "as such". However, the European Patent Office has granted 20,000 patents for computer implemented inventions.
This confusion is one reason why Europe has fallen behind in the race to patent new technologies. Another reason is the requirement that European patents must be translated into different languages, which is costly. The EU proposed limiting the number of translations in its Regulation on the Community Patent, but there is no agreement on which languages would be used in Europe.
The cheapest solution would be to use one language, probably English, but this would offend other European countries. A centralised system for processing European patents could marginalise the patents offices of Ireland and other Member States.
Furthermore, the regulation proposes that disputes relating to patents could be brought before a new court, called the Community Intellectual Property Court. Initially this court would deal with disputes relating to the granting of patents, but it would inevitably be responsible for solving copyright and trademarks disputes.
The proposed European Court would comprise Courts of First Instance (similar to the Irish High Court) and a Court of Appeals. The location of these courts could have important implications for Ireland. England already has a well-established Patents Court and a central position for the creation, management and distribution of intellectual property.
If a Court of First Instance of the European Intellectual Property Court were to be established in London, but not Dublin, the primacy of the UK in this field would be emphasised to Ireland's detriment. Other small EU member states have similar concerns.
Last month, the EU proposed a Directive on the patentability of computer-implemented inventions and defined them as meaning any invention which is performed by use of a computer and which has a novel feature that is realised by means of a computer program.
The Directive requires Member States of the EU to change their laws to ensure patentability. Patents would be granted for both products and processes. The inventor of a new type of programmed computer or computer network might get a patent, as would the inventor of a new process that was carried out by computer. If this change comes about it will make computer programs patentable throughout Europe. Presently, computer programs have to rely on the protections of copyright law, and the Directive provides that this protection will remain unaffected.
Ironically, this proposal came after the US Government began an investigation into the role of patents in fostering innovation and competitive issues and concerns involving patents. Patents may enable businesses in a high technology market to buttress that postion, while minimising their exposure in relation to competition law.
This is a concern in relation to e-commerce, where the EU suggests that the US has granted patents that are "clearly invalid". One safeguard is that the proposed Directive will require the Commission to "monitor the impact of computer-related inventions on innovation and competition".
-Denis Kelleher is a practising Barrister and co-author with Karen Murray BL of Information Technology Law in Ireland, published by Butterworths:, http://www.ictlaw.com.
