According to current European and international law (EEC Software Directive,
European Patent Convention,
L’Accord sur les ADPIC et les brevets logiciels), computer programs are to be "protected as literary works" by the rules of copyright and are not considered to be 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 COM(2002)92 "on the patentability of computer implemented inventions", colloquially termed "software patent directive", in order to codify this regime change. In order to become law, this directive needs approval by the European Parliament and the Council of Ministers. The European Parliament, impressed by strong opposition from software developpers, companies and academia, then amended this proposal in september 2003, so as to reconfirm the non-patentability of software.
The Council of Ministers of the European Union is currently conducting secret negotiations between ministerial patent experts, mostly employees of national patent offices, about the proposed directive. The patent officials in the EU Council's "Working Party on Intellectual Property (Patents)" have insisted on codifying the recent practise of the European Patent Office, i.e. on establishing US-style unlimited patentability in Europe. They have been encouraged in this course by the European Commission and in particular by internal market commissioner Frits Bolkestein, who had threatened the parliament with removal of its chances for participation in case they do not vote for software patentability. In Novemer 2003, Bolkestein's directorate hat circulated a secret document, which tries to give rationales for the rejection of all clarifying amendments of the European Parliament. These Commission's rationales are limited to nitpicking on questions of legal grammar and based on misinterpretation of words and even outright lies, but they are the only rationales that anyone from either the Commission or the Council has put forward so far in reaction to the Parliament's amendments.
When the Irish government took over the EU Council Presidency in early January 2004, it announced that it wanted the Council to take a decision for "protection of software inventions" within its term, which ends in June. In a working document circulated internally on January 29 by the Irish Presidency, the working party has taken an extreme pro-patent position, misleadingly called "compromise paper". Jonas Maebe, Belgian spokesman of FFII, explains:
On all points where substantial controversy exists, the Council Working Party has taken the most hardline pro-patent view of all parties. They make patentability hinge on the word "technical" and yet refuse to explain what that word means. They have refused the interoperability exemption which even the Legal Affairs Committee had accepted. They have rejected the freedom of publication. They are insisting on making programs directly claimable, something which even Arlene McCarthy and the Commission did not advocate. And they are stating these rules in a very convoluted, misleading manner. E.g. instead of saying that you can claim a computer program per se, they say "you can't claim a computer program on its own or on a carrier unless, when loaded on a computer and executed, it does something that is described in another claim of the same patent application." What kind of idiocy is this? Of course you can't claim a program to steer a washing machine when the rest of your patent is about a new mobile phone antenna (or on a program that shows progress bars if the rest of your patent is about 1 click shopping). And, assuming that the rest of the patent is about combining 8 portions of chemical A with 2 portions of chemical B to improve cleaning efficiency in a computer-controlled washing machine, do they really want any program code that says "8 x A + 2 x B" to fall under a patent claim on this basis? Don't they know the difference between reality and symbolic references to reality? And don't they know that programs as such aren't patentable according to European Law?
During secret negotiations on March 2, the Working Party's position was further hardened by the patent officials. A secret proposal by the Luxemburg delegation, which was leaked to the FFII, would at least allow the use of a patented technique for interoperation (e.g. allow the use of GIF images as long as Internet Explorer does not support patent-free and functionally equivalent or superior alternatives such as PNG and MNG). The group rejected this proposal and added a recital wording which states that a right to interoperate with a patented standard can only be obtained by competition law on a case-by-case basis, i.e. only by costly, lengthy and rarely successful procedings.
see also Council proposes fake interoperability safeguards in patent law, rejects real ones
The Foundation for a Free Information Infrastructure (FFII) is a non-profit association registered in several European countries, 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 500 members, 1,200 companies and 75,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.
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