Software Patentability & EU Directive COD/2002/0047
- Current Status
- Quick History
- What We & Our MEPs Must Do
- 10 Reasons Why Software Ideas Must Remain Free From Patentability
- Some Examples of Directive Text Problems
- Links
(top)
Current Status
Check FFII's Software
Patent News page for regularly updated news.
On July 6th 2005 the Parliament voted to reject the current form of
the directive (by 648 votes to 14, with 18 abstentions). This is a
good result for European software developers of all sorts; while we
would have preferred to see a directive similar to the Parliaments
first reading this is much better than having the Council text
approved.
The directive would now appear to be dead since Commissioner McCreevy
has previously stated that "...if the parliament was to reject the directive then I would not be putting another proposal on the table."
Slightly older news
The text being handed to the Parliament, by the Council, is an
extremely pro-swpat text. By producing this text, the Council
disregarded the Parliament's 1st reading input into the legislative
process.
In the 2nd reading, for each amendment, an absent MEP is counted as
a vote against. So we will need 60-65% of the present MEPs to vote
for each amendment for it to be adopted. If the anti-swpat vote is
split between two philosophies, both will lose. So the best course
is to ask for a Yes vote on a broad range of amendments. This will
produce a text that will require later fixing in a
"conciliation process". Expecting to produce an imperfect
text is ok because it's not the Parliament's job to produce
enactable legislation. That is what the Council was supposed to do
with the Parliament's amendments from the 1st reading.
On June 20th/21st, the JURI sub-committee of the European
Parliament will meet to merge the 266 tabled amendments into a more
understandable set that will be voted on by the Parliament on July
6th. Most of the 266 tabled amendments are duplicates.
(top)
Quick History
In February 2002, the European Commission drafted Directive
COD/2002/0047 to "harmonise and unify" the patentabilty
criteria of Europe's patent offices. This is a good goal, but the text of
the Commission's directive contained some loopholes and undefined terms
regarding what constitutes a patentable invention. These loopholes would
make all software ideas legally patentable.
In September 2003, after numerous delays and sustained lobbying, we were
pleased that the European Parliament heavily amended the directive to
unambiguously confirm that software ideas should not patentable.
Unfortunately, in May 2004 the European Council discarded most of the
Parliaments amendments, returning the text to an unclear state relying on
undefined terminology. The loopholes of the Council's text would allow
software ideas to be patented.
(top)
What We & Our MEPs Must Do
Remember when you contact your MEPs, to tell them what persons or
groups represent a position similar to yours. Since your reading
this page, likely candidates are
IFSO, FSFE,
and FFII.
To defend our right to develop and distribute software, and to
protect Europe's software developers from endless patent litigation,
our MEPs must bring back all of the
Parliaments 1st reading amendments.
We have to make sure the MEP candidates are aware of this issue and what
they must do. You can help by contacting MEP
candidates. The only question that doesn't allow an ambiguous answer is
"Will you vote to bring back all of the
Parliaments amendments?"
If you need any help with what to say, or if you want someone to take over
and explain the issue to an MEP, contact IFSO's Committee by email. There is also the
fsfe-ie mailing list for public
discussion.
(top)
10 Reasons Why Software Ideas Must Remain Free From Patentability
(For a slightly more detailed explanation, please read IFSO's recent Letter to the Council, and
our original Letter to the
Parliament.)
- There are currently no costs, waiting periods, or application forms
required for software development. Patentability would radically change
this and would invalidate many development and business models.
- Software already has "ownership rights" via the copyright
system. Copyright is instant, costs nothing, and doesn't interfere with
independent development.
- If companies could purchase exclusive rights to the use of techniques
required by their defacto standards, they could choose their competitors.
"Competition" would become an inside joke, and preventing
competition would be completely legal and above board.
- Small and medium enterprises can't afford patents, they can't spare time
for patent searches and they can't risk the cost of contesting an accusation
in court.
- The patent term (20 years) is absurdly long in terms of the software
industry.
- Innovation in software is incremental, new ideas build on the old. To
advance the state of the art, developers must be permitted to build on top
of the state of the art.
- Software is abstract, like maths. Software ideas can be described in any
number of ways, so searches for software patents would be hit-and-miss.
Reliably avoiding patent infringement would be impossible.
- Engineering, manufacturing, and pharmaceutical patents are industrial
regulations. Software idea patents would place restrictions on what all
businesses and all individual computer owners can do with their
computer.
- In the USA, to get around the burden of software idea patents, the Big
Players of the software industry have formed cartel-like patent sharing
agreements. Small and medium enterprises cannot afford to join these
agreements, and NONE of the Big Players are European companies.
- For Europe to develop its own software industry, we must retain the right
to write our own software - without having to ask permission or pay
royalties to current (foreign) market leaders.
(top)
Some Examples of Directive Text Problems
Two of the larger problems with the text of the directive:
The "as such" Problem
The Council added the following: Article 4a(1) "A computer program as
such cannot constitute a patentable invention."
At first reading this appears to exclude software from patentability but
the "as such" in this usage means "as a computer
program". So patent applicants simply describe their innovation as
being more than just a computer program, i.e "An invention comprising
(A) a computer of limited resources, (B) software which, upon loading into
the memory of (A) causes process XYX to occur".
The "technical effect" Problem
The directive says that for an innovation to be patentable, it must cause a
"technical effect", but this term isn't defined. Software could be interpretted as having a technical effect.
Since patent offices are paid for the applications they accept, not the
ones they reject, there are incentives for them to look for avenues which
allow them to sell more patents. The final directive must be
unambiguous.
(top)
Links
