[DMCA-Activists] Software Patents in Europe: Short Overview

[Seth Johnson]

> http://kwiki.ffii.org/?ShortIntroEn


Software Patents in Europe: A Short Overview


DEUTSCH: http://kwiki.ffii.org/?ShortIntroDe
GREEK: http://epatents.hellug.gr/wiki/index.php/Short%20introduction
FRANÇAIS:  http://kwiki.ffii.org/?ShortIntroFr


A patent is a right to monopolize an invention. A would-be inventor
specifies a scope of activities from which he wants to exclude others (the
claims), and submits it to the Patent Office, which evaluates whether these
claims depict an invention within the sense of the law and whether the
invention is correctly disclosed and industrially applicable (formal
examination). Some patent offices will moreover examine whether the
invention is new and non-obvious (substantive examination). If the
application passes the examination hurdles, the Patent Office grants the
applicant exclusive rights to produce and market the invention for a period
of 20 years. 

Programming is similar to writing symphonies. When a programmer writes
software, he weaves together thousands of ideas (algorithms or calculation
rules) into a copyrighted work. Usually some of the ideas in the
programmer's work will be new and non-obvious according to the (inherently
low [1]) standards of the patent system. When all these new ideas are
patented, it becomes impossible to write software [2] without infringing on
patents. The copyright claims of software authors are thereby expropriated;
they live under permanent threat of being blackmailed by holders of large
patent portfolios [3]. As a result, less software is written and fewer new
ideas appear. 

The core patent law in Europe is the European Patent Convention of 1973 [4].
In Article 52, the Convention states [5] that discoveries, scientific
theories, mathematical methods, rules, methods of thought, business methods,
and computer programs are not inventions in the sense of patent law. There
is a reason for that: in the legal tradition patents have been for physical
devices and particular implementations, whereas patents on software cover
abstract ideas. When patents are applied to software, the result is such
that instead of patenting a specific mousetrap, you patent any "means of
trapping mammals" (or, for an actual example, any "means of trapping data in
an emulated environment" [6]). 

In 1986 the European Patent Office (EPO) started granting patents on
computer programs in violation of the EPC [7], allowing claims on software
distinguished only by the use of the following phrasing: 

"a system and method for using a computer, characterised by ..." (process
claims)


Unchecked in this practice, in 1998 they began granting claims that
literally contradicted the law, allowing patents on software for claims that
used the following phrasing: 

"a computer program, characterised by ..." (program claims).


The number of patents on software that the EPO has granted in this manner is
estimated at more than 30,000 [8], and this practice has been increasing at
a rate of 3,000 per year. 

Most of these patents are broad and trivial and not significantly different
from corresponding types of patents that the US and Japan have been
allowing. 

Given the damaging effects of this practice, not to mention its illegality,
one might expect the EPO would be subject to pressure to bring its practice
in accord with the letter and spirit of the law. Instead, in 1997 the patent
establishment surrounding the European Patent Office began an attempt to
rewrite the law to make their practice of granting patents on software
legal. This process has been presented as an effort to "clarify" the
distinction between valid and invalid claims related to software, and as an
effort to supposedly assure that claims on "pure software" would not be
possible -- *but it is in fact actually an effort to enable software as such
to be legally patented.*

In 2000 this group of patent professionals, consisting of patent lawyers
from governments (on the Administrative Council) and large corporations (on
the Standing Advisory Committee) and their colleagues from the European
Commission (the Industrial Property Unit in the Directorate of the Internal
Market, at the time under commissioner Mario Monti)) *attempted to delete
all the exclusions listed under Art 52 of the European Patent Convention.*
Due to public resistance which they apparently did not anticipate, this
effort failed. 

In 2002, the European Commission's Directorate for the Internal Market
(under Monti's successor Frits Bolkestein) submitted proposal 2002/0047 [9],
for a Directive "on the patentability of computer-implemented inventions."
The Directive was claimed to serve the purposes of harmonizing Member State
laws and clarifying some details with the aim of preventing excesses of the
EPO. However, a direct reading of the misleading phrasing and terminology in
the Directive, reveals that the proposal is actually designed to *codify
unlimited patentability as practiced by the EPO.*

Small and medium-sized enterprises and activists from all across Europe,
coordinated by the Foundation for a Free Information Infrastructure (FFII)
(http://www.ffii.org/), a non-profit foundation situated in Germany, put out
press releases, conducted petition drives, undertook intensive lobbying,
held demonstrations, and managed to impress upon the Members of the European
Parliament (MEPs) [10] the importance of the decision despite its technical
nature and the deceptive and misleading manner in which it was being
presented. 

On September 24, 2003, the Parliament voted as a body [11] to incorporate a
set of amendments into the Directive [12] that served the purpose it had
ostensibly been intended to serve, clarifying and reaffirming the
non-patentability of programming and business logic and upholding freedom of
publication and interoperation. 

According to the European Union procedures, the amended proposal is next
examined by the Council of Ministers. Within the Council, the "Working Party
on Intellectual Property (Patents)" was put in charge. This group consists
of exactly the same members as the Administrative Council of the European
Patent Office: patent administrators from the national governments. 

After a few months of secret negotiations, the "Working Party" produced a
"compromise" document [13] that *eliminated the Parliament's amendments and
explicitly made computer programs, data structures and process descriptions
patentable*. Access to versions of this document was denied until the very
last minute "due to the sensitive nature of the negotiations and the absence
of an overriding public interest." 

On 18 May 2004, the Council made a few cosmetic amendments to the document
and approved it by a slim majority despite the apparent intention of a
number of countries to follow Germany's lead in promising to vote against
it. In that session, Germany claimed to be satisfied by a meaningless
amendment; the Netherlands supported the document while admitting that it
might be problematic; and Commissioner Frits Bolkestein inserted an
amendment in Article 4 which, he claimed, clearly made software
unpatentable, when in fact his phrasing merely reasserted deceptive
terminology, while he failed to mention that elsewhere in the proposal
*Article 5 unambiguously stated the very opposite*. (In the press conference
that followed the Council vote, he failed to offer any examples of software
that would not be patentable as a result of the proposal.) The Council vote
was also notable for the way in which the Irish Presidency pressed Denmark
for her votes [15], by which the slim majority was secured. 

After trivial corrections and translations, the Council is expected to
officially endorse their proposal in July 2004. It will then return to the
European Parliament for another reading. At this stage, the Parliament may
either reject it outright, accept it as it is, or insist on the set of
amendments which the Council has eliminated. 

[1] http://swpat.ffii.org/analysis/trivial/
[2] http://webshop.ffii.org/
[3] http://www.forbes.com/asap/2002/0624/044.html
[4] http://www.european-patent-office.org/legal/epc/
[5] http://swpat.ffii.org/analysis/epc52/
[6] http://swpat.ffii.org/patents/samples/ep769170/index.en.html
[7] http://swpat.ffii.org/papers/epo-t840208/index.en.html
[8] http://swpat.ffii.org/patents/stats/index.en.html
[9] http://swpat.ffii.org/papers/eubsa-swpat0202/
[10] http://kwiki.ffii.org/index.cgi?MEPs
[11] http://swpat.ffii.org/news/03/plen0924/index.en.html
[12] http://swpat.ffii.org/papers/europarl0309/index.en.html
[13] http://swpat.ffii.org/news/04/cons0402/index.en.html
[14] http://kwiki.ffii.org/?Cons040518En
[15] http://kwiki.ffii.org/?ConsVideo0405En

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