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Software patents in Europe
« on: 2003-11-03 13:59:39 » |
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There have been some recent events in Europe regarding the patentability of software. First, some background on the issue as seen by an anti-software-patents site:
http://swpat.ffii.org/
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Why all this fury about software patents?
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If Haydn had patented "a symphony, characterised by that sound is produced [ in extended sonata form ]", Mozart would have been in trouble.
Unlike copyright, patents can block independent creations. Software patents can render software copyright useless. One copyrighted work can be covered by hundreds of patents of which the author doesn't even know but for whose infringement he and his users can be sued. Some of these patents may be impossible to work around, because they are broad or because they are part of communication standards.
Evidence from economic studies shows that software patents have lead to a decrease in R&D spending.
Advances in software are advances in abstraction. While traditional patents were for concrete and physical inventions, software patents cover ideas. Instead of patenting a specific mousetrap, you patent any "means of trapping mammals" or "means of trapping data in an emulated environment". The fact that the universal logic device called "computer" is used for this does not constitute a limitation. When software is patentable, anything is patentable.
In most countries, software has, like mathematics and other abstract subject matter, been explicitely considered to be outside the scope of patentable inventions. However these rules were broken one or another way. The patent system has gone out of control. A closed community of patent lawyers is creating, breaking and rewriting its own rules without much supervision from the outside.
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Now, the news: The EU Parliament recently voted against software patents. But the Parliament is only one of the three bodies governing the EU; there is also the Commission (a kind of "central government" of the EU) and the Council (representing the national governments). A struggle of lobbyists lies ahead now, since that decision will have to be accepted by the Council before becoming law.
http://swpat.ffii.org/news/03/fsfr1010/index.en.html
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Software Patents: Breakthrough in the European Parliament
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The European Parliament voted on September 24th for a directive proposal which confirms the existing European law, makes software explicitely unpatentable and codifies additional safeguards, such as freedom of publication and interoperation. The amended directive proposal thereby achieves the claimed aims of the European Commission, especially "harmonisation and clarification of the status quo" and "prevention of a drift toward US-style patentability of pure software and business methods". However, the European Commission doesn't seem to be happy. Internal Market Commissioner Frits Bolkestein and others have been threatening to withdraw the directive project and to pass the ball back to national patent administrators and, should that fail, to rely on brotherly help from Washington. But the European Parliament was neither deceived nor intimidated. Now the patent movement's strategy is to dismiss the Parliament's position as "unworkable" and to attribute it to "ignorance" rather than to a conscious policy decision. Bolkestein's friends can be counted on to resort to whatever inconsistency, illoyalty or illegality is necessary in order to obtain what they really want: "legal security" for the owners of more than 30,0000 US-style patents on software and business methods, granted in accordance with a law-to-be, which the European Parliament has refused to pass for them. A few months of intense struggle lie ahead.
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http://swpat.ffii.org/news/03/cons1023/index.en.html
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EU Council Patent Workgroup Meeting
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Since the European Parliament voted for clear exclusion of software from patentability in september 2003, the patent movement has been fighting back through the EU Council. A EU directive can only become law if Council and Parliament agree. The position of the Council will be prepared by a workgroup of national patent officials on thursday 2003-10-23 in Brussels. At the meeting, the European Commission's patent officials may propose to disregard the European Parliament's amendments and go back to earlier texts from the Commission's and the Council's patent officials which allow unlimited patentability. The UK government, whose patent policy is determined by its Patent Office, is expected to push for this option.
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Reactions:
http://swpat.ffii.org/papers/europarl0309/aipla0310/index.en.html
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US Patent Attorney Erwin Basinski, chairman of the International Affairs Subcommittee of the Electronic & Computer Law Committee of the American Industria Property Lawyers Association (AIPLA) calls on his colleagues to rise in arms against the European Parliament's amended directive, which would render granted patents invalid and, by excluding what Basinski calls "software technology" from patentability, violate Art 27 TRIPs. Basinski attributes the amendments to the enormous power of the "opensource lobby". Basinski, a specialist in the art of patenting business methods at the European Patent Office and a diplomat with excellent relations to the European Commission, seems pessimistic about the possibility of amending the directive back to what it was. He predicts that his colleagues will instead work toward having the directive killed by the Council.
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