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European Commission will propose to replace clear limits on patentability with empty words

The Eurolinux Alliance of software companies and non-profit associations has been informed by reliable sources that the European Commission (EC) will publish within a few days a draft proposal for a European Community Directive on the limits of patentability with regard to computer programs. Most programmers want not patents but only copyright to apply to software. Evidence from economic studies suggests that software patents stifle innovation and reduce productivity. The EC will pay verbal tribute to this reality in its press release. However, in its directive draft, the EC will propose to legalise US-style software patents in Europe and to remove all effective limits on patentability. With some reading skills in european patent lingo, you will easily notice this discrepancy. If you can afford 20 minutes, we will teach you the basics and introduce you to a debate, which is likely to stir unusual political passions at least for the next 1-2 years, as the directive draft attempts to pass through the European Parliament and the European Council.

For immediate Release

Crash Course in European Patent Lingo -- how to make sense of the upcoming Directive Proposal

The European Commission (EC) is expected to come up with a proposal for a directive on the limits of patentability with regard to computer programs within the next few days.

This directive is to supersede the regulation of the European Patent Convention (Art 52 EPC) of 1973, according to which computer programs, mathematical methods, business methods, information rendering and other immaterial endeavors do not belong to the realm of patentable inventions (also called technical inventions) and are therefore not regulated by patent law but by copyright, competition law and other less rigid property regimes.

More than 100,000 signatories and 300 corporate sponsors of the Eurolinux Alliance as well as more than 90% of the participants of the EC's consultation exercise have asked the European Commission to refrain from all attempts to change the wise regulation of 1973. All evidence collected so far by economic studies indicates that patents stifle rather than stimulate innovation and productivity in the software economy. Leading politicians have backed the Eurolinux position and called on the European Union to resist the pressure from the European Patent Office (EPO) and its allies.

Meanwhile the EC has made up its mind.

Hartmut Pilch, president of the german-based FFII and speaker of the Eurolinux Alliance, recommends a critical look at the upcoming directive proposal:

"The directive proposal will contain a lot of misleading rhetoric. To understand what it is really about, we need to approach it with the following questions:
  1. In 1998 the EPO started allowing direct patent claims to information objects|i.e. claims such as "computer program on disk, characterised by that ... [ upon loading into computer memory a "further technical effect" X is achieved ] ...". Is the European Commission willing to make it clear that such claims are invalid ?
  2. In 1986 the EPO started granting patents for computer programs, business methods and other computer-implementable rules of organisation and calculation, as long as the claim wording avoided direct references to information objects and instead highlighted the self-evident "technical effects" of the new calculation rule on known hardware (processor, memory etc). Is the European Commission willing to make it clear that such claims are invalid ?
  3. Does the European Commission propose definitions for central terms such as "technical", "invention" etc? In case it uses the new EPO jargon expression "computer-implementable inventions", does it offer a definition for distinguishing patentable inventions (e.g. computer-controlled chemical reaction, based on new knowledge about material phenomena) from rules of organisation and calculation (programs, business methods etc)? Do the proposed definitions live up to the promise of clarification and harmonisation? Is the EC willing to cite some real examples of claims granted by the EPO and explain why they would or would not qualify as patentable subject matter according to the proposed definitions?

According to our information the EC will answer question 1 positively, thus in effect reversing recent EPO decisions and attaching greater importance to informational freedom, at least in theory. This would mean that there is no "illegal software" but only illegal use. In practise this could make a big difference or no difference at all, depending on how the procedural details are regulated.

Unfortunately, the proposal will fall far short of answering the more basic questions 2 and 3 positively. Although the press releases will probably promise a refusal of "US-style business method patents", insinstance on the technical character of inventions, protection of interoperability and much more, upon close reading you will find that the EC is actually proposing to:


Why is the EC so stubbornly acting against an informed public consensus of programmers and economists? Jean-Paul Smets, vice president of the French Speaking Association of Users of Linux and Free Software and speaker of Eurolinux, explains:

  1. The responsible Industrial Property Unit at Bolkestein's General Directorate for the Internal Market has for years been firmly in the hands of patent experts who aspire to a career within the European patent institutions. They feel comfortable following EPO doctrines and would take a personal risk if they strayed away from this path.
  2. Although leading members of parliament, political parties and public administrations have repeatedly warned against the negative impact of software patentability on innovation and taken clear positions against software patents, government officials still mostly leave the matter to their patent Law experts who sometimes behave in a way which is more loyal to the patent establishment than to the written instructions they have received from their government. This situation leads to great difficulties for national governements to control the European Patent system and, thus, to agree on a consensus position.
  3. Patent experts working at the EPO or in the legal departments of large IT companies form a well financed group of politically active individuals who haved been able to speak in the names of Nokia, Alcatel, Thomson, IBM and Siemens and even associations such as Unice, BSA and EICTA. This has allowed the European Commission to refer to less than 10% of the respondents as the so-called "economic majority". Obviously, the European Commission is not taking into account the fact that most innovative software in Europe is developped outside large IT companies. Decisions on innovation policy at the European Commission seem to be oriented toward a "financial majority" rather than an "innovation majority".

Jozef Halbersztadt, patent examiner at the Polish Patent Office, is reminded of the intransigence of communist governments in his country:

"It is self-destructive for the patent experts and their political allies to ignore the opinions of software professionals and the wider public. The patent lawyers who are calling for patentability of immaterial teachings and their friends in the governments are showing exactly the same attitude as politicians in the communist states before their downfall.

After some calculation from the official Analysis of replies to the Consultation Paper, one can derive the following distribution of the views of respondents:

For Software Patents: 85 out of 1447 responses:
Against Software Patents:

Against in groups:

Large Enterprises:
Software Developers:
IP Professionals:
Government representatives:

These figures may be somewhat inexact and unrepresentative, due to various biases. Yet the big picture conforms to what other surveys in Europe and the US have found. When looking at the quality of the arguments, the picture becomes even clearer: general statements of faith in the patent philosophy on one side, vivid accounts of software practitioners' sorrows on the other."

Jürgen Siepmann, a German physicist and attorney specialising in software law and legal delegate of Linux-Verband, explains the relations between the european institutions and the risks which the European Commission is taking by legislating on the software patent question.

"The EPO is not an institution of the European Community. Its Technical Boards of Appeal (TBA) are only inferior chambers within an intergovernmental administrative body. These boards are in many respects not proper lawcourts according to the standards of constitutional democracy. Their decisions are not binding for anyone outside the administrative practise of the EPO itself. However, on the part of some national guardians of patent law, there has been a great eagernness to follow the TBA's decisions, particularly when they were in blatant violation of the EPC. This has torn the practise of national courts apart and created an apparent need for new legislation. By proposing to remove all limits on patentability, the EPO created an unexpected backlash of public opinion. In Oct 2000, national patent lawmakers gave up their plans and handed the case over to Brussels. With its Greenpaper and its Consultation Paper, the European Commission has gradually adopted the position of the EPO.

The Consultation Paper was conceived as a mobilisation exercise of the patent establishment, but it ended up showing more clearly than ever that software patents are unpopular and unjustified today as they were in 1973. The evidence that surfaced has moreover highlighted a dangerous lack of checks and balances in the current european patent system. The European Commission now has the opportunity to reform the system. If it seizes this opportunity, the Community Patent project can become a success. If it just gives the EPO's lobby what they want, the risks are extraordinarily high. In view of TRIPS and other international treaties, a bad definition of key terms such as "technical" and "invention" is enough for tying Europe into an inflexible system that will oblige it to grant masses of harmful patents for at least the next decade.

Several recent EC directives on intellectual property matters have created more problems than they solved and need to be renegotiated all the time. The Greenpaper and the Consultation Paper are incompatible with modern methods of economic analysis of law. Their understanding of software is also far inferior to that achieved by patent law scholars in the 1970s. Many people are wondering how much longer the EC can afford to go on drafting ill-advised regulations of this kind. The combination of crude monopoly rights (patents) with delicate information infrastructures (software) is one of the most explosive possible subjects of legislation. It would be in the EC's interest to hand this issue back to the national governments, e.g. by outlining several proposals for them to choose from. In any event, the Eurolinux regulation proposal is on the table as a legitimate alternative."

European Consultation on the Patentability of Computer-Implementable Rules of Organisation and Calculation (= Programs for Computers)

European Consultation on the Patentability of Computer-Implementable Rules of Organisation and Calculation (= Programs for Computers)

About EuroLinux - www.eurolinux.org

Press Contacts

France and Europe:
Jean-Paul Smets-Solanes, +33-662057614
Germany and Europe:
Hartmut Pilch, +49-89-18979927
dido@prosa.it, +39-049-8774950
Luuk Van Dijk, +31 6 224 97 227, see VOSN en Software Patenten
Denmark and Denmark:
Anne Ƙstergaard

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[ 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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