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2nd meeting of the European Commission's Industrial Property Unit with a Eurolinux delegation

For the second time, representatives of the Eurolinux Alliance are meeting officials who are in charge of drafting a European Directive on the Patentability of Computer-Implementable Rules of Organisation and Calculation (Programs for Computers). A preliminary outline of a possible directive draft, published on 2000-10-19, proposed to legalise such patents and asked a series of questions concerning details of this approach. The consultation yielded written statements, often with well known faith-based arguments, and also with a well known distribution of forces: a large number of individual software developpers, mostly speaking for themselves, against a small number of patent lawyers, mostly speaking in the name of big organisations. So far no further questioning and dialogue has been organised. The Eurolinux Alliance is therefore happy to have the chance to meet the consultation organisers and help pave the way for an in-depth discussion.


Our first meeting with the EC industrial property unit was later mentioned in the consultation paper as one of the milestones that made European legislators reconsider their plans to officially legalise the patentability of computer-implementable rules of organisation and calculation (programs for computers).

This time we are at a more advanced stage of the debate. While last time our purpose was to make the viewpoint of a large group of software developpers and companies better known to the legislators, this time, through our petition and the ensuing consultation exercise, the voices of many more concerned parties have already been heard to some extent. Thus the meeting is more characterised by fact-finding discussions in presence of a few non-partisan scholars. One immediate purpose is to make the acquaintance of Mr. Anthony Howard, who has taken over the file from Mr. Bernhard Müller in March. Another is to explore the implications of a possible "restrictive approach" to software patentability, especially one based on a reaffirmation of the concept of technical invention as worked out by law doctrine in the 70s and 80s and upheld until today by some national courts.

Place, time and participants

The meeting is in Brussels on Mon 2001-09-24. From the Eurolinux side, at least Jean-Paul Smets and Hartmut Pilch will be present. Moreover, a few independent experts will be accompanying us. The number of people will not exceed 8. Below is a tentative agenda.


14:15introductionah, jps
14:30What kinds of patents are we talking about?
Some examples of EPO swpat and attempts at classification and rough evaluation (e.g. junk vs innovations that could arguably justify a special exclusion right)
15:00What rules of patentability are there to choose from?
How clear are these rules and to what kinds of patents do they lead?
some examples, with special emphasis on
  1. the technical invention according to EPC and caselaw til 1986:
  2. newer caselaw and various attempts at systematising it

Which of these rules can achieve the directive's goal of clarification and strengthening of the internal market?
phm, sk
15:30Mr. Noteboom joins us, summary of previous discussion
Why not reaffirm the technical invention doctrine, e.g. in a way similar to our regulation proposal?
Could this doctrine be officially pursued as "Plan B", i.e. an alternative to the consultation paper's approach of codifying EPO caselaw?
16:00what are the protection needs of the various players in the software field?
which insights can we gain from the consultation replies?
which questions were answered and which need further discussion?
rf, fh
16:30recapitulation and summaryjps

Related Reading

[ EUROLINUX Alliance News | European Commission will propose to replace clear limits on patentability with empty words | Eurolinux Position on the Community Patent | Juridical Coup at the European Patent Office | 2nd meeting of the European Commission's Industrial Property Unit with a Eurolinux delegation | 2001-02-28: Eurolinux letter to the EU patent legislators ]

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