Current Situation in Europe

Porto 03-07-15	Linuxtag 2003	EU 03-10-10	Current Situation in Europe

The European Commission has proposed to override the current clear and uniform European patentability rules ("mathematical methods, schemes and rules for mental activity, methods of doing business and programs for computers are not patentable inventions") and replace them by a set of nationally implementable rules which make it very difficult for national courts to reject patents on algorithms and business methods such as Amazon One Click Shopping. 30,000 such patents have already been granted by the European Patent Office (EPO), openly since 1998 and more or less covertly since 1986. In return for transferring formal legislative competence to Brussels, the patent community's power center in Munich is officially authorised to set the substantive rules of patentability as it pleases. European patent attorneys are however obliged to bear a slightly greater rhetorical burden than their US colleagues: they must present their algorithm as a "computer implemented invention" which "makes a technical contribution in its inventive step".
The EPO and its community of industrial patent lawyers, assembled in its Standing Advisory Committee, have for years been dominating patent policy not only of the European Commission but also of most national governments, most large industry associations, the European Council and the European Parliament's Commission for Legal Affairs and the Internal Market (JURI). In the latter, especially Arlene McCarthy, Dr. Joachim Wuermeling, Janelly Fourtou and Malcolm Harbour have been firmly opposing all attempts to limit patentability.
The plans for patentability of software have been strongly criticised by the Council of Regions of the EU, the Economic and Social Council of the EU, the French Government, the German Chamber of Industry and Commerce, the German Monopoly Commission, the British Government's Intellectual Property Rights Commission, the French Industrial Planning Commission, numerous economic studies, 30 leading scientists, numerous politicians and political parties as well as 91% of the participants in a EU consultation and more than 250,000 individual and 2000 corporate signatories of a petition to the European Parliament and associations representing 2,000,000 enterprises.
The European Parliament's Cultural Commission (CULT) and Industry Commission (ITRE) have in early 2003 voted for amendments which more or less clearly exempt software from patentability.
JURI has voted on June 17th in favor of further extensions to patentability and some fake limitations. The JURI proposal was presented to the plenary for decision on 24th of September. Numerous groups tabled amendments, which succeded. The result is an amended directive in the sense of the CULT and ITRE decisions, which clearly upholds freedom of publication and interoperation and excludes abstract ideas, including algorithms and business methods, from patentability.
A choir of industrial patent lawyers, supported by Commissioner Bolkestein, has been calling for withdrawal of the directive project. They say the European Parliament ruined its chance of democratic participation by failing to support the European Commission's proposal.

Annotated Links

Software Patents: Breakthrough in the European Parliament: The European Parliament voted on September 24th for a directive proposal which confirms the existing European law, makes software explicitely unpatentable and codifies additional safeguards, such as freedom of publication and interoperation. The amended directive proposal thereby achieves the claimed aims of the European Commission, especially "harmonisation and clarification of the status quo" and "prevention of a drift toward US-style patentability of pure software and business methods". However, the European Commission doesn't seem to be happy. Internal Market Commissioner Frits Bolkestein and others have been threatening to withdraw the directive project and to pass the ball back to national patent administrators and, should that fail, to rely on brotherly help from Washington. But the European Parliament was neither deceived nor intimidated. Now the patent movement's strategy is to dismiss the Parliament's position as "unworkable" and to attribute it to "ignorance" rather than to a conscious policy decision. Bolkestein's friends can be counted on to resort to whatever inconsistency, illoyalty or illegality is necessary in order to obtain what they really want: "legal security" for the owners of more than 30,0000 US-style patents on software and business methods, granted in accordance with a law-to-be, which the European Parliament has refused to pass for them. A few months of intense struggle lie ahead.
FFII: Software Patents in Europe: For the last few years the European Patent Office (EPO) has, contrary to the letter and spirit of the existing law, granted more than 30000 patents on rules of organisation and calculation claimed in terms of general-purpose computing equipment, called "programs for computers" in the law of 1973 and "computer-implemented inventions" in EPO Newspeak since 2000. Europe's patent movement is pressing to legitimate this practise by writing a new law. Although the patent movement has lost major battles in November 2000 and September 2003, Europe's programmers and citizens are still facing considerable risks. Here you find the basic documentation, starting from the latest news and a short overview.