Attempts to strengthen UK patent laws and give courts the power to award higher damages for infringements suffered a blow last week because of a parliamentary technicality.
A Private Members Bill sponsored by Conservative MP Ian Liddell-Grainger set out to deter patent misuse and safeguard software development operations by allowing inventors and entrepreneurs to receive potential damages of as much as three times the cost of any infringement.
The Bill, which Liddell-Grainger claimed would potentially save billions for British industry, is designed to bring the UK more in line with US laws. At present, potential damages for claimants in patent infringement cases are limited to actual costs.
But the Patents Act Amendment Bill was withdrawn just hours before it was due to be debated after lawyers identified a problem with its terminology. The Bill would have given courts the power to award "exemplary" damages, but was withdrawn following concerns that the phrase had a precise legal meaning different to the one intended.
Software inventor and entrepreneur Peter Malcolm, who has about 100 software patents to his name, said existing UK patent laws needed to be beefed up to create a level playing field for software developers.
"Because of the differences to the law, big companies, particularly in the US, are not frightened of infringing patents. That puts UK business at a distinct disadvantage," he said.
Malcolm, a former vice president at Computer Associates responsible for the company's patent portfolio, warned that software patent protection was vital. "Once software is released onto the market it's relatively easy to replicate. A lot of the value of a company is in the patents it owns," he explained.
Although legal experts admit that software patent infringement is likely to become much more of an issue, Tom Broadhurst, a solicitor specialising in intellectual property law at law firm Morrison Foerster, said that imposing larger fines for patent abusers would only have a limited effect in addressing the problem.
"The devil's in the detail. Unlike in the UK, in the US, if you commit a tort such as patent infringement or medical negligence there's a possibility of punitive damages," he said.
"To adopt the US rule for one tort in isolation would seem very strange to me. The real crunch for patent infringers is the use of injunctions to stop companies using the technology," he added.
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