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Portugal and Software Patents
Commemorate Banana Union Day

Portugal, a nation whose citizens own none of the 30,000 software patents granted by the EPO as of summer 2003, has formed a "national consensus" in favor of software patents and of the EU directive proposal. This consensus was reached by a consultation exercise conducted by the Portuguese Patent Office (INPI) in 2001. Back then the INPI sent a pro-software-patent letter to 33 senior corporate executives, and received 6 responses, all of which applaud the INPI viewpoint. In summer 2003 MEP Ilda Figueiredo conducted another hearing which showed a large consensus of portuguese software companies against software patents. Impressed by this, INPI launched a second round of consultations.

Source of Portuguese Patent Policy: INPI.pt -- the Patent Office

->Instituto Nacional de Propriedade Industrial (INPI)
Portuguese Patent Office. As in most other countries, the patent office has been determining patent policies and speaking for the government on these matters in Portugal.
->Posição portuguesa em matéria de patenteabilidade de invenções relacionadas com programas de computador.
A letter sent by INPI.pt to 19 senior corporate executives. This letter says the European Comission is conducting a consulation regarding software and business methods patents and that the INPI has sketched a first reply to this consultation and asks these people for their comments on this non final document. This letter was written on 2001-01-11, 4 weeks after expiry of deadline, signed by Jaime Andrez on behalf of INPI and of Portugal as a whole.
->COMENTÁRIOS À CARTA DA COMISSÃO EUROPEIA SOBRE A PATENTEABILIDADE DOS PROGRAMAS DE COMPUTADOR
Tentative response of INPI.pt to consultation call of CEC/DGIM/Indprop, written on 2001-01-16, 1 month after expiry of deadline. Approvingly recites European Patent Office (EPO) caselaw and positions agreed upon at the Trilateral Conference of June 2000 by EPO, USPTO and JPO. In a letter to 19 senior corporate executives, INPI.pt asked for endorsement of this position. Says that SMEs and individuals particularly need patent protection and that patents provide just recompense for innovation, without which people wouldn't invest in technological development in any field.
->INPI.pt 2003/07/27: software patent consultation
INPI presents a series pro-software-patent viewpoints from the European Commission and the European Parliament's Legal Affairs Commission and calls on companies to express their views. The call is rather hidden inside the INPI web site.
->INPI.pt Documento de Consulta 2003/07/28
Extensive document, contains among others
  1. replies of 3 companies who responded to a consultation call on software patents by the Portuguese Patent Office in early 2001 and a new call for consultation.
  2. "Portugues position", according to which, in addition to the European Commission's proposal, direct claims to "computer program characterised by that ...." must be legalised, so that programmers can be sued as soon as they publish a program on the Internet.

In a letter of 2002-10-04 on p. 15, the Portuguese Patent Office explains how the Council Working Party arrived at the decision to ask for direct patentability of software.

In view of the need to protect inventions in this field by patents, Portugal drew attention to the enhanced value of protection that could be achieved if this protection was extended to "programs on computer media". This is because protection of a program on computer media would make it possible for the patent owner to directly sue for patent infringement anyone who sells or uses without permission of the patent owner a program covered by the program claim. Most recently, the German delegation presented an amendment to article 5 so that patent protection would be extended to "computer programs on computer media", and as a first reaction the Portuguese delegation supported this amendment.

The second letter which INPI sent to 33 companies asks for their opinions on this specific subject. 2 companies replied saying it is a good idea.

->REU/DKPMA 2002/09/23: Änderungsvorschläge zum Softwarepatente-Richtlinienentwurf
INPI represented Portugal in the "Patent Working Party" of the European Council and basically supported what the other governments, also represented by their patent offices, decided.
->European Consultation on the Patentability of Computer-Implemented Rules of Organisation and Calculation (= Programs for Computers)
The EU Consultation, based on a pro-software-patent paper and suggestive questions, yet resulting in 91% of participants opposing software patentability.

INPI pro-patent consultations of 2001 / 2002

INPI says that in 2001 they contacted the following 19 persons of their choice (mostly senior corporate executives):

Name + TitlePhone numberCompany NamePositionCompany address
Brás Araújo Software - TECNIDATA, SGPS, SAPresidente do CA1900-651 LISBOA / Rua Conselheiro Emídio Navarro
Dr. Feliz Grangeiro21 478 94 00Software - T.I. - Tecnologia InformáticaAdministrador1679-017 PONTINHA / Porto da Paiã / Praceta das Descobertas, 8
Dr. Vitorino Sousa21 274 19 03Software - SUPREMO - Sociedade de Gestão, LdaPresidente do CA2800-166 ALMADA / Rua D. Maria da Silva, 8 - 1º Esqº
Engº Álvaro Portela Software - SONAEPresidenteApartado 1197 / 4471-909 MAIA / Lugar do Espido - Via Norte
Engº Luís Barros Software - SOFTLAB - Consultoria e Desenvolvimento de Software, LdªDirector Geral4700-374 BRAGA / Rua Custódio Vilas Boas, 19
José Duarte Software - SAP PortugalDirector Geral2780-730 PAÇO D'ARCOS / Quinta da Fonte / Edifício D. Sebastião / Dr. Jose G Cabral
Dr. Jorge Carlos Pena Santos Carneiro22 607 45 00Software - SAGE - PORTUGAL SOFTWARE, SADirector Geral4100-359 PORTO / Praça Mouzinho de Albuquerque, 113 - 6º
Engº Valério Marques Software - QUADRIGA - Telemática e Comunicações, SAPresidente1495-148 ALGÉS / Avª General Norton de Matos, 59A - R/c F
Dr. Carlos Manuel de Lucena e Vasconcelos Cruz21 330 81 00Software - PT CONTACT - Telemarketing e Serviços de Informação SAPresidente do CA1050-007 LISBOA / Rua Andrade Corvo, nº 6
Engº João Matias21 423 50 00Software - ORACLE PortugalDirector Geral2780-000 PORTO SALVO / Condomínio Lagoas Parque / Edifício 8
Dr. Rogério Carapuça Software - NOVABASEPresidente do CA1099-078 LISBOA / Torre 1 - Piso 9 / Avª Engº Duarte Pacheco
Dr. João Paulo Girbal Software - MICROSOFTDirector Geral2780-730 Paço D'Arcos / Quinta da Fonte / Rua Quinta da Quintã, nº 3 / Edifício Plaza, 1
Dra. Olga e Sousa Software - LUMA - Serviços Informáticos e Comunicações, SAPresidente do CA1500-030 LISBOA / Rua Alfredo Guisado, 8
José Joaquim Oliveira21 791 50 00Software - IBM PORTUGUESA SAAdministrador Delegado1700-036 LISBOA / Praça de Alvalade, 7
Engº Luís Manuel Lourenço Paupério da Silva22 834 04 00Software - I2S INFORMÁTICA - Sistemas e Serviços, SAPresidente do CA4250-409 PORTO / Travessa Ribeiro de Sousa, 40
José Gonçalves253 240 400Software - eticadata - Software, LdaDirector Geral4711-853 BRAGA / Rua Orfeão de Braga, 107 - R/c
Carim Jafar Software - eartweb.net - Tecnologias de InformaçãoPresidente do CA1050-136 LISBOA / Rua Latino Coelho, 6 - 4º Esqº/Fte. / Dr. Jose G Cabral
Dr. Artur Queiroz Machado Software - CPCIS - Companhia Portuguesa de Computadores, Informática e Sistemas, LdªPresidente do CA4050-448 PORTO / Rua das Oliveiras, 72
Dr. José Manuel Moreira21 716 70 40Software - 4 SIR - Sistemas de InformaçãoDirector Geral1600-546 LISBOA / Urbanização do Polo Tecnológico, Lt 3

The original contacting letter reads (translated from Portuguese):

Excluding computer programs from being patentable as in article 52 of the Munich Convention and consequentially in every member state legislation gives the wrong impression that it is not possible to obtain patent protection for inventions in the domain of computer programs which demotivates many independent programmers and SMEs who are not familiarised with patent law

[...]

INPI, 16th of January 2001

(no signature)

Of the 19 people contacted, only 3 responded. These 3 replies approved of INPI's position. The 3 respondents were:

  1. Rogério Carapuça, manager of Novabase (Novabase owns 51% of Octal TV, the company who implemented the first set top boxes for Microsoft)
  2. Someone (probably Valério Marques) from Quadriga. Quadriga (a small company doing WAP applications) It is associated with TMN (mobile phone company) which belongs to Portugal Telecom. PT is a Portuguese old phone company, used to be owned by the government and had a complete monopoly of communications for decades. Upon privatisation, it became a close ally of Microsoft, with plenty of strategic agreements (from browser wars to interactive television).
    ->Google Search for Portugal Telecom and Microsoft
    Shows plenty of alliances.
    ->Portugal Telecom and Microsoft Announce Strategic Agreement to Accelerate Implementation of Interactive Video and Data Services
    This announcement of a major Strategic Alliance with a large investment of MS in PT, written from the viewpoint of MS, was widely distributed in English and Portuguese by PT.
  3. Someone from Timesharing, an old company from the timesharing computer age. This company has been bought by Portugal Telecom and its name has been changed to PT Contact. Its main activity is now telemarketing.

On 2002/10/04 INPI sent out a new letter asking for support for their position regarding the proposed directive. This letter was sent to senior executives of 33 companies. Two companies replied, supporting INPI's position: SOL-S and Sonae.

  1. SOL-S reply is signed by António Ramos Costa, CEO and Chairman of the Board. The SOL-S group recently integrated Solsuni. Solsuni was founded in 1992 as the only distributor for Sun Microsystems in Portugal.
  2. Sonae's reply is signed by Jorge Marques dos Santos. He was an assistant of the board. At the time, Jorge Marques dos Santos was also the president of the APED (Portuguese Distribution Companies Association).

"Re-Opening" of Consultations in 2003-07

->Software Patent Hearing 2003/07/15 in Porto
This hearing was attended by numerous people from SMEs and produced a 100% consensus against software patents and against the proposed directive. Isabel Alfonso from INPI was impressed and promised to "re-open consultations".
->INPI.pt Documento de Consulta 2003/07/28
In late July the consultation was re-opened by an inconspicuous consultation call on the INPI website.

Below we cite the INPI consultation call with some comments and links added by us.

PATENTABILITY of Computer Programs

Computer programs as such are excluded from patentability by the patent law of Member States and by the European Patent Convention, but the European Patent Office (EPO) and national patent offices have granted thousands of patents for inventions implying computer programs. Just the EPO by itself has granted over 20'000 such patents.

It is this problem regarding the patentability of inventions implying computer programs that the Directive of the European Parliament and of the Council wants to solve. The directive aims to promote an increased legal certainty in the domain of inventions implying computer programs, harmonizing national legislations regarding this subject and making patentability requirements more transparent.

The process for constructing this directive has integrated consulting initiatives to the interested parties by the Commission and also by the Member States. INPI, the Portuguese organisation for industrial property was also part of this consultation effort. On the INPI site a discussion fórum has taken place and two letters have been written to software companies based in Portugal, asking them for comments that were to be used on the technical discussions for the directive that were done at the time. INPI has received replies from five companies from a total of 33 to whom the letters have been sent. The replies indicated an agreement with the text "Comentários à carta da Comissão Europeia sobre a patenteabilidade dos programas de computador" (commentaries to the letter from the European Commission about the patentability of computer programs) as well as an agreement with the Portuguese position on article 5 of the directive proposal[1].

The European Parliament voting on a modified directive text will most likely take place on the 1st of September 2003.

There are two radically opposed positions in confrontation:

- from one side established software companies and also those who see the patent system more as a set of opportunities than as a set of threats, who want to continue counting on it for their positioning strategies.[2]

- on the other side the defenders of free software who consider the patent system inadequate to protect inventions related to computer programs and who fear this Directive because they consider it will increase the use of software patents; they also fear that their programming activity will be permanently inhibited by the Damocles sword of the patents on software algorithms.[3]

To gather more data for this discussion and to allow the adoption of fairer and more balanced legislation that promotes Europe's development INPI has a great pleasure in reopening the Forum on this matter.

ALL COMMENTARIES MAY BE SENT TO THE E-MAIL ablanch@inpi.pt and they will be published on the site as soon as possible.

To help with the commentaries to be sent to this Forum the most important documents related to this discussion have been made available.

  1. Documents related to the the INPI consultation to the companies
  2. Summary of the consultation made by the European Union to the interested parties
  3. Initial version of the Directive Proposal on the 20th of February 2002
  4. Final version of the Directive Proposal that will be submitted to the European Parliament on September the 1st

Annotated Links

->Paulo Querido (Expresso) 2003/07/19: A chantagem das Patentes
One of several well-written articles which appeared in this journal in summer 2003.
->Uncritical Portuguese Echo of IDG News Service
An article which parrots misinformation from Paul Meller of IDG, claiming that the JURI directive proposal would prevent business method patents such as Amazon One Click.

see also IDG/Meller 2003/06/18: EU headed for limited software patent law. and Nachrichtenmedien und Software-Patente

->Pamphlets on Software Patents
This includes a Portuguese pamphlet, distributable especially to Portuguese MEPs.
->PUBLICO.PT - Última Hora
Multicert, a portuguese company, says it has acquired a patent on a method of digital timestamping.

Notes

[1] The "portuguese position on article 5" seems to be that direct patent claims of the form "a program, characterised by that upon loading it into memory [some computing process] is executed" should be allowed. The European Commission had proposed that they should not be allowed.
[2] None of the more than 30000 software patents granted by the European Patent Office against the letter and spirit of the written law are owned by portuguese companies or individuals. Even in countries where more people own software patents, the software industry at large is not using the patent system to a significant extent yet. It is factually wrong to speak about "continuation" of patenting strategies, unless by "established software companies" INPI means only a few very large players such as IBM, Microsoft, Sun, Nokia, Alcatel and Siemens.
[3] At the Porto hearing of 2003-07-15 several representatives of software companies who write proprietary software were present and opposed software patentability. INPI als has been consistently failing to mention copyright. They are creating the wrong impression that the discussion is about whether all software should be free.
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