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BundestagFDPTauss 2004-06-02

DE Liberals Ask for Bundestag Vote Against Software Patents
Commemorate Banana Union Day

The German Liberal Democrats (FDP) have submitted a resolution proposal to the German Federal Parliament (Bundestag) in which they explain in detail why software patents as granted by the European Patent Office are undesirable and incompatible with the written law and how this malpractise should be rectified. The FDP believes that the European Parliament found an "adequate compromise" in its vote of 2003-09-24, and that this compromise deserves the German government's full support, whereas the Council of ministers agreed on a "misguided economic policy decision" last week. The resolution calls on the government to withdraw its support from the Council's decision and to declare support for the European Parliament's vote instead. It is now up to the governing fractions to supports the FDP's resolution and make the Irish presidency lose the qualified majority that is required for the adoption of its patent-maximalist proposal by the heads of state at their next meeting in June.
  1. The Text
  2. Backgrounds
  3. Annotated Links

1. The Text

On Sept., 22nd, 2002, the Commission has submitted a proposal for a "Directive of the European Parliament and the Council about patentability of computer-implemented inventions" to the EU Parliament in accordance with Art. 251, sec. 2 and Art. 95 of the EC treaty (KOM(2002)92 2002/0047 (COD)). This proposal had serious shortcomings, as it mainly just codified the European Patent Office's questionable practice in recent years to grant numerous trivial or broad patents on algorithms and business methods.

According to Art. 10 of the "Agreement on Trade-Related Aspects of Intellectual Property Rights" (TRIPs), software is to be protected by means of copyright. This possibility is enabled by the EU Council's directive 91/250/EWG from May 14th, 1991 on the legal protection of computer programs (ABl. no. L122, pp. 42 et sqq.), which has been adopted though §§ 69a et sqq. of German copyright law. A patent-based form of protection is hardly compatible with this copyright-based protection for works. Therefore, computer programs (and business methods) "as such" are excluded from patentability by the European Patent Convention (EPC). German patent law adopts this regulation in §1, sec. 2 and 3 PatG. This must continue to be an absolutely definite ruling.

After intensive and controverse discussions, the European Parliament has passed a directive proposal in the first reading in September 2003. This proposal includes numerous changes to the original Commission's version leading to an adequate compromise. The Parliament's amendments endorse publication freedom, ensure interoperability, define TRIPS' "technology" and "industry", and clarify that data processing is not a field of technology. Additionally, the European Parliament demands that the Directive defines "computer-implemented inventions" as inventions in terms of patent law, i.e. the computer is only a tool for implementation and the real invention is in a field of technology (i.e. applied natural science).

In January 2004, the EU Council's working party has delivered a new proposal under the title "Compromise of the Presidency". This version rejects the Parliament's vote and abandons the essential parts described above. Contrary to the European Parliament's position, the Council's version allows unlimited patentability and patent enforcement with regard to software. The Council's proposal therefore falls far behind the version approved by the Parliament and does not meet the requirements for the needed substantial regulations in any way.

In the Ministry Council's meeting on May, 18th, 2004, the German gouvernment has voted against the Parliament's Directive proposal and supported the Council's version, contrary to its announced intentions beforehand. This position change had a significant impact on the voting as a whole and led to the approvement of the Council's proposal. The German gouvernment's vote is a wrong decision, with regard to both economy and competition. The German Federal Parliament disapproves it.

The German Parliament requests the government to revise its vote in favor of the Council on May 18th, 2004. For the rest of process pertaining to the "Directive of the European Parliament and the Council about the patentability of computer-implemented inventions", it should follow the European Parliament's position about patentability of computer programs, as it is expressed in its vote of September 24th, 2003, instead.

2. backgrounds

->DE Liberals 2004-05-26 Ask for Bundestag Vote Against Software Patents

3. Annotated Links

->Original Text from FDP
converted from MsWordDoc to HTML, navigation bar added at the top
->Thin Majority of Ministers Approve Software Patents, Swayed by Bogus Compromise
The Irish presidency has secured political approval for a new draft of the controversial software patents directive in a meeting of the Council of Ministers on Tuesday, 2004-05-18. The draft and accompanying press releases are full of statements of good intentions to avoid patents on software and business methods as such, whereas the provisions in the text assure that such items are without any doubt to be treated as patentable inventions in Europe. The draft owes its majority to a maneuver by the German delegation, which had collected the opposition under its flag, to settle for a bogus amendment in the last minute and take the Poles and Latvians with it. Representatives of the Netherlands, Hungary, Denmark and France apparently acted in breach of promises given to their parliaments or governments.
->Germany, the Trojan Horse of Bolkestein in the Council
Had Germany kept its promise to at least abstain, the 37 votes needed to block it would have been achieved, and surpassed by votes from countries like Poland who had apparently been instructed to follow the Germans.
->http://kwiki.ffii.org/Fdp040518De
->EU Council 2004 Proposal on Software Patents
The Council of Ministers has reached political agreement on a paper 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.
->FDP.de and Software Patents
Am 25. Mai 2004 stellte die FDP einen Entschließungsantrag im Bundestag, der sehr klar gegen die Patentierbarkeit von Software und für die Position des Euorpäischen Parlamentes in dieser Frage Stellung nimmt. Die Meinungsbildung in der FDP reflektiert weitgehend die Meinung in Verbänden von KMU und Freiberuflern. In Zeiten geringer Beschäftigung mit dem Thema haben Patentanwälte (auch eine Freiberuflergruppe) einigen Einfluss. Auf ihrem Düsseldorfer Parteitag vom Juni 2001 spricht sich die FDP dafür aus, das geistige Eigentum an Programlogik auch künftig ausschließlich über das Urheberrecht zu regeln und kritisiert Bestrebungen, Programme als solche patentierbar zu machen. Zugleich verspricht sie sich viel von Biopatenten und setzt auf flächendeckenden Einsatz von Kopierschutztechniken an Stelle der GEMA-Gebühren. Die FDP ist neben den Grünen die einzige Partei, die zum Thema Softwarepatente eine Position beschlossen hat. Während sich der Düsseldorfer Beschluss noch als Formelkompromiss deuten lässt, fand die FDP im September 2000 und im Frühjahr 2003 unmissverständliche Worte gegen die Patentierung von Software.
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english version 2004/12/01 by Hartmut PILCH