Current European and international law (EEC software directive, European Patent Convention, TRIPs) states that computer programs are to be "protected as literary works" by the rules of copyright and are "not inventions in the sense of patent law". The European Patent Office, the European Commission and the Council of the European Union have since 1997 been involved in a concerted effort to change these rules and adopt a regime similar to that of the USA, where software is subjected to both copyright and patents. In 2002 the European Commission, backed by the member states through the EU Council of Ministers, proposed a EU directive "on the patentability of computer implemented inventions" in order to codify this regime change. However, under the impression of strong opposition from software developpers, software companies and academia, the European Parliament amended the proposal in september 2003 so as to reconfirm the non-patentability of software. This decision of the European Parliament is meeting fierce opposition from ministerial patent administrators in national governments and at the European Commission.
The EU Council's "Working Party on Intellectual Property (Patents)"
met on March 2nd to discuss the
European Parliament's amendments to the software patent directive.
The discussion was based on a confidential working document titled "Council Presidency Compromise Paper". This proposal removes everything from the Parliament's amendments that limits patentability, including:
- All definitions of "technical", "invention" and "industrial" are removed, and yet patentability is limited by nothing but these terms.
- Freedom of publication is removed from Art 5, instead information goods become directly claimable, so that internet service providers can be sued for allowing publication of independently developped programs on their server. (see Program Claims: Bans on Publication of Patent Descriptions)
- Art 6a (freedom of interoperation) is removed. This way Microsoft receives green light for its new licensing program on file formats, and large software and telecommunication companies can charge fees for the use of the next generation of Internet standards.
- A few cosmetic amendments by EPO-friendly MEPs such as Arlene McCarthy and Joachim Wuermeling are admitted into the draft. Among these are amendments which were rejected by the European Parliament in the plenary vote.
see EU Council 2004/01/29 "Presidency Compromise Proposal" on Software Patents and EU Software Patent Directive Articles 1-6: Parliament's vs Council's Version
When file formats can be owned, it becomes impossible for competitors to convert from it to another file format. This reinforces monopolistic tendencies in the software market. Standardisation Consortia such as the W3C (responsible for the world wide web standards) are regularly slowed down by attempts of patent owners to charge fees on the use of a standard. Patent fees impose heavy burdens on the managment of the standard itself and of the compliant software. Free software and shareware can usually not comply. Due to the high transaction costs, formalised standards become less competitive in relation to de-facto standards, where one vendor alone decides.
Microsoft is already pushing patented protocols into the market under licensing conditions which exclude free software. Even the European Commission's
recent competition procedings against Microsoft have failed to change this. Anti-trust law alone, without further provisions such as Art 6a, is out of the reach of normal market participants and provides insufficient remedies against the anti-competitive effects of proprietary communication standards.
In its version of March 17, the paper goes yet one step further. A newly worded recital 17 indicates that the right of interoperation shall not be regulated within patent law but only within antitrust law:
Recital 17
The provisions of this Directive are without prejudice to the application of Articles 81 and 82 of the Treaty, in particular where a dominant supplier refuses to allow the use of a patented technique which is needed for the sole purpose of ensuring conversion of the conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them.
Hereby the working party creates the impression that it is taking the needs for freedom of interoperation into account. Upon closer reading it turns out however that the exact opposite is achieved: without a costly, lengthy, and rarely successful legal procedure software creators shall, according to the will of the Council patent working party, be not be allowed to interoperate.
By this hardening of its position the Council Working Group responds to the following proposal from the Luxemburg Delegation:
Delegations will find below a proposal by the Luxembourg delegation for an interoperability clause (new article 6a) to be included in the text of the proposed Directive. The proposed text is based on amendment 76 of the European Parliament, but is more restrictive in that it takes the example in the original amendment and uses it as the only acceptable exception for the purpose of ensuring interoperability. This stricter wording should make the provision fully compatible with Article 30 TRIPS.
Article 6a (new)
Member States shall ensure that wherever the use of a patented technique is needed for the sole purpose of ensuring conversion of the conventions used in two different computer systems or network so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement.
This Proposal corresponds to the article in the form in which it was approved by the parliamentary committees CULT, ITRE and JURI. It avoids the term "significant purpose", which had been newly introduced in the plenary vote. Thereby the Luxemburg delegation fully satisfies the criticism of the Commission and the requirement of the three-step test (limited limitation) according to Art 30 TRIPs. By refusing the Luxemburg proposal and with it the position of all three concerned committees of the European Parliament, the patent working party shows that Art 30 TRIPs is not its primary concern. Rather, it must be assumed that rent-seeking interests associated with the dominance of communication standards, as recently advocated in the name of the CEOs of five large European telecommunication companies, are the driving forces behind the Council patent working party's intransigence.
The FFII is meanwhile mobilising its 50,000 supporters and 300,000 petition signatories to demonstrate both on the Internet and in Brussels on April 14th. The website demo.ffii.org states:
In February 2002, the European Commission proposed a directive that would legalise software patents. However, the European Parliament decided in its Plenary Vote of 24th September 2003 to fix all the loopholes in this proposal and explicitly banned software patents.
Currently, the European Council of Ministers is discussing this directive. Their internal working party proposes to simply discard all clarifying amendments from the Parliament. They want to make everything patentable.
That is not an option Europe is willing to accept. We showed them this on 27 August 2003. We will show them again on 14 April 2004.
Close your website in protest
The site provides numerous sample strike pages and banners which can be used by webmasters to support the action.
The demonstration begins at 11.30 at Luxemburg Square in Brussels. Participants will wear t-shirts with the slogans "No Software Patents -- Power to the Parliament". There will be speeches and performances. The marchers will thank the European Parliament and protest against the lack of accountability in the Commission, in the Council, and sectoral bodies such as UNICE and EICTA, which they accuse of misrepresenting the industry by leaving policy decisions to specialist patent lawyer committees, similar to the patent working party of the EU Council.
The demonstration is preceded by a press conference in the European Parliament, room AG2, at 10.00.
The demonstration is followed by an interdisciplinary conference in the European Parliament, again room AG2, at 14.00. Among the participants of the intensely prepared discussion agenda are members of the European Parliament, officials from the European Commission and the Council Working Party, software developpers, economists, lawyers from both sides of the divide.
see Program of Brussels Events
EU Council 2004/01/29 "Presidency Compromise Proposal" on Software Patents- The Irish EU Council presidency has circulated a paper among governental ministries which contains alternative suggestions to the amendments on the directive "on the patentability of computer-implemented inventions" passed by the European Parliament (EP). In contrast to the EP version, the council version permits unlimited patentability and patent enforceability. Following the current version, "computer-implemented" algorithms and business methods would be inventions in the sense of patent law, and the publication of a functional description of a patented idea would constitute a patent infringement. Protocols and data formats could be patented and would then not be freely usable even for interoperability purposes. These implications might not be apparent to the casual reader. Here we try to decipher the misleading language of the proposal and explain its implications.
- EU Software Patent Directive Articles 1-6: Parliament's vs Council's Version
- Tabular Comparison of the core part of the EU directive "on the patentability of computer-implemented inventions", so far with encoded numbering only and without comments.
- Europarl 2003-09-24: Amended Software Patent Directive
- Consolidated version of the amended directive "on the patentability of computer-implemented inventions" for which the European Parliament voted on 2003-09-24.
- CEC 2003/11: Secret Nitpicking on European Parliament's Amendments
- The Industrial Property Unit of the Commission of the European Communities (CEC) had stated in October 2003 that it finds the European Parliament's Amendments to its software patent directive proposal mostly inacceptable. In a confidential document distributed to EU member state governments in November 2003, the Commission's patent officials added some critical notes about each of the amendments of the European Parliament. The Commision points out that the text deviates from the practise of the European Patent Office in its use of the terminology and in its reasoning. This is enough for the Commission to find the Parliament's text inacceptable. Rather than examine the the merits of the Parliament's versus the EPO's approach, the Commission treats the EPO's approach as the absolute authority that must be followed and tries to find fault in the Parliament's legal logic, mostly by misunderstanding this logic or claiming that it is unclear or that it is at odds with some established practise. Some of these claims are provably untrue. The Commission's own proposal has been heavily criticised by prominent patent law experts for its incoherence and lack of clarity.
- Council of the European Union and Software Patents
- Together with the European Commission and the European Parliament, the Council is one of the three pillars of the European Union, which jointly legislate in a co-decision procedure. It is a forum where the national governments and their specialised ministries meet. The question of how to limit patentability is handled in the "Council Working Party on Intellectual Property and Patents". This council has been holding increasingly frequent meetings to discuss the European Commission's proposal for a software patentability directive and come up with a counter-proposal. The national delegations are mostly composed of national patent office representatives or people whose career path is confined to the national patent establishment and who are factually dependent on this establishment in many ways. Some delegations, such as the french and belgians, have comprised independent delegates and been fairly critical of the CEC proposal. Others have been even more pro-patent than the CEC. All have focussed on textual questions and caselaw rather than on what kind of output they want from the legislation in terms of patents granted/rejected and economic policy objectives.
- CEOs of big telcos sign letter against Europarl Amendments
- The chief executive officers of Alcatel, Ericsson, Nokia and Siemens have signed a letter to the European Commission and the European Council which complains about the European Parliament's amendments to the proposed software patent directive, saying that these will effectively remove the value of most of the patents of their companies and thereby harm the competitiveness of Europe's industry and violate the TRIPs treaty. FFII points out that the Directive indeed threatens the interests of the patent departments of such companies, but not of the companies themselves: The letter is characterised by untruthful dogmatic assertions which say much about the thinking of patent departments and little about the interests of their companies, many of whose employees, especially software developers, support the positions of FFII.
- Kai Brandt 2003: Patent Protection in Europe in Danger
- In an internal journal of Siemens, Dr. Kai Brandt, an independent patent attorney residing in Munich and member of the Siemens patent department, writes that the European Parliament voted to ban patenting of all innovative industrial processes that make use of software, that there is no R&D without patents, that the European Commission's original proposal was well balanced, that the EP voted for amendments because it was misled to believe that patents and opensource software are incompatible, and that Siemens boss Heinrich von Pierer has teamed up with other CEOs and associations to prevent this disaster, which is only in the interest of a few software distributors and against the interests of all innovative SMEs. Brandt fails to give his audience any usable pointers that could allow them to inform themselves about the other side's arguments.
- Irish EU Presidency to "protect software inventions" in May
- The Irish vice prime minister has unveiled a brochure which describes the agenda of the Competitiveness Council of the Irish EU Presidency. The brochure places high emphasis on the Community Patent and the IP Enforcement Directive and somewhat lower emphasis on the software patent directive, although it asserts that "effective instruments" for "protection" of "software inventions" form an "important underpinning" of the "knowledge based economy". The IE Presidency will try to bring about an agreement on the software patent directive at the May meeting of the Competitiveness Council.
- FFII UK: IPR Enforcement Directive
- Oorspronkelijk bedoeld als een maatregel om georganiseerde criminele namaak en piraterij hard aan te pakken, is het bereik van het wetsvoorstel uitgebreid zodat het nu van toepassing is op alle mogelijke intellectuele eigendomsdisputen. FFII UK documenteert deze zaak, in het bijzonder vanuit het oogpunt van het UK, waar gelijkaardige wetgeving ontwikkeld is door rechtspraak gedurende de laatste 20 jaar. Niettemin is zelfs daar het ontevreden over de nieuwe EU richtlijn groot, zowel onder de burgers als bij grote en kleine bedrijven.
- mail:
- media at ffii org
- phone:
- Hartmut Pilch +49-89-18979927
More Contacts to be supplied upon request
The Foundation for a Free Information Infrastructure (FFII) is a non-profit association registered in Munich, which is dedicated to the spread of data processing literacy. FFII supports the development of public information goods based on copyright, free competition, open standards. More than 300 members, 700 companies and 50,000 supporters have entrusted the FFII to act as their voice in public policy questions in the area of exclusion rights (intellectual property) in data processing.
http://swpat.ffii.org/news/04/cons0317/index.en.html
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