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Software Patents in Europe: A Short Overview

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) standards of the patent system. When many such ideas are patented, it becomes impossible to write software without infringing on patents. Software authors are in effect deprived of their copyright assets; they live under permanent threat of being blackmailed by holders of large patent portfolios. As a result, less software is written and fewer new ideas appear.

Europe already has uniform rules about what is patentable and what not. They are laid down in the European Patent Convention of 1973. In Article 52, the Convention states that mathematical methods, intellectual methods, business methods, computer programs, presentation of information etc are not inventions in the sense of patent law. There is a systematic reason for that: in the legal tradition patents have been for concrete applications of natural science ("technical inventions"), 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").

In 1986 the European Patent Office (EPO) started granting patents that were directed to computer programs but presented in the guise of process claims, typically phrased as follows:

"1. process for [using general-purpose computing equipment], characterised by ..." 

The patents granted on this basis were considered as hypothetical, because the program as such, when distributed on a disk or via the Internet, did not constitute a process and was supposedly not an invention. To resolve this ambiguity, the European Patent Office took the final step toward patentability of pure software in 1998 by allowing program claims, i.e. claims that use the following phrasing:

"2. computer program, characterised by that [with its help a process according to claim 1 can be executed]."

Prior to taking this bold step, in 1997, the EPO had secured commitment for plans to rewrite the law from the following key players of the European patent system, below referred to as the "European Patent Establishment":

  1. the patent office administrators of the member states, sitting on the EPO's Administrative Council
  2. the patent lawyers of large corporations, sitting on the "Standing Advisory Committee of the European Patent Office" SACEPO *
  3. the patent administrators of the European Commission in the Industrial Property Unit at the Directorate General for the Internal Market, at the time under commissioner Mario Monti.

The EPO has meanwhile granted more than 30,000 pure software patents in anticipation of the new legislation, and the number has recently been rising 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. In fact the three patent offices have created a common "Trilateral Standard" for granting such patents in May 2000, summarised under the new term "computer-implemented inventions". Later, in an attempt to soothe growing criticism in Europe, the patent lobby started to emphasize differences in the treatment of "computer-implemented business methods". However even these differences are volatile and insignificant.

In August 2000 the European Patent Organisation, i.e. the intergovernmental organisation that runs the European Patent Office, 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, 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, upon closer reading it becomes clear that the hat the Commission's proposal was designed to codify unlimited patentability as practiced by the EPO, with one exception: it did not allow program claims.

On September 24, 2003, the European Parliament as a whole (plenary assembly) voted to incorporate a set of amendments into the Directive that actually accomplished what the Commission had pretended to aim for: it clarified and harmonised the rules, reaffirming the non-patentability of programming and business logic and upholding freedom of publication and interoperation. This set of amendments was based on a year of work in the Parliament's committees for Culture and Industry. However the directive is considered to belong into the domain of the Legal Affairs Committee (JURI), which is dominated by MEPs with close affinity to the patent establishment. JURI had ignored the proposals of the other committees and proposed a set of fake limits on patentability, in an attempt to fool the plenary assembly.

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

After a few months of secret negotiations, the "Working Party" produced a "compromise document" that removed all of the Parliament's limiting amendments, reinstated the Commission's proposal but additionally allowing program claims (Art 5(2)), disallowed any interoperability privilege within patent law (Rec 17) and inserted some fake limits from JURI (Art 4A etc), resulting in the most extreme and uncompromising proposal yet. Access to 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 approved the Working Party's text (with some cosmetic modifications) 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 Article 5(2), by allowing program claims, unambiguously states the opposite. In the press conference that followed the Council vote, Bolkestein failed to offer any examples of software that would not be patentable pursuant to the proposal. The Council vote was also notable for the way in which the Irish Presidency pressed Denmark for her votes, by which the slim majority was secured.

After some routine editing and translating, the Council is expected to formally endorse this proposal in June 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 a set amendments similar to the ones for which it had previously voted. There will without doubt be attempts by the patent establishment's relays in JURI to propose another set of fake limits and to pretend that this is based on meaningful negotiation and difficult "compromises" with the Council.