European Consultation on the Patentability of Computer-Implemented Rules of Organisation and Calculation (= Programs for Computers)

In summer 2000 the scene was set for legalising software patents in Europe. For several years, the EU Commission's Industrial Property Unit had planned to rubberstamp the European Patent Office's policy of granting patents on rules or organisation and calculation. The last necessary step was the official removal of all restrictions on patentability from the law or at least a deletion of the "programs for computers" in art 52 of the European Patent Convention (EPC). Moreover, the European Commission was scheduled to become a major player in a future European patent system, which was to be based on Community law rather than on an intergovernmental negotiation process. As a part of this transition, the European Commission was to issue a software patentability directive. Under the name of "clarification" and "harmonisation" the existing legal framework was to be discarded and instead the practise of the European Patent Office was to be legalised and made binding for national courts, many of which had so far refused to follow the EPO on its adventurous course, either by sticking to the letter and spirit of the existing law or by developping their own halfway solutions. In 1997 the European Commission outlined the contents of a software directive in a "Greenpaper on the Community Patent" and inserted it into the rear part of a long resolution text which was rubberstamped by the European Parliament. Yet, this met with unexpected resistance. By summer 2000 a Petition for a Software Patent Free Europe had gained the support of 50000 signatures, 200 software companies and numerous politicians of all camps. Under the impression of these developments, the governments of FR+DE+UK decided not to delete the computer program exclusion for the time being and instead hand over the issue to the European Commission. The patent law experts at the CEC Patent Unit then opened a public consultation on 2001-10-15 which was to last until 2001-12-15 and thus cover exactly those weeks, during which the EPC had been scheduled to be changed. Art 52(2) EPC was as a result left untouched, and instead the patent movement was mobilised by means of a specifically focussed consultation call:

The basic question of whether computer programs (computer-implemented rules of organisation and calculation) are inventions in the sense of patent law (art 52 EPC) was not asked. Instead, the CEC Patent Unit implied that the answer must be yes. They talked about "computer-implemented inventions" and used this term as a synonym for "computer-implemented rules of calculation and organisation" rather than for true technical inventions which can be implemented under program control and whose patentability is beyond doubt. Thus the EU Industrial Property Unit not only implied an answer where it should have asked a question, but also falsely attributed silly positions to the software patent critics, before even opening the consultation.

The accompanying "independent study", written by some well-known EU software patent lobby activists, again reiterated the usuall patent lawyer credo in the guise of a somewhat more objective wording. This led the study to draw conclusions such as "any proposition to extend the patent system beyond the status quo cannot be claimed to rely on scientific evidence". In this context "status quo" refers to the practise of the European Patent Office's Technical Boards of Appeal. The study does not even consider the possibility of criticising that practise and returning to the European Patent Convention. Nor does it explain the concept of "technical invention", which is the underlying spirit of the European Patent Convention. Moreover the study predicts that software patents will gradually be accepted and used by the open source software community for its own benefit.

In spite of all this care taken to mobilise a network of patent professionals and create the impression of a pro-patent mainstream opinion, the results of the mobilisation campaign did not really look very convincing as a basis for arguing the case of software patentability.

While at the beginning, the CEC Indprop Unit (Industrial Property Unit in the General Directorate for the Internal Market of the Commission of the European Community) still wanted to quickly issue a directive and rallied national governments for this purpose, it gradually turned out that these governments were not very eager to go along. Also, the CEC Patent Unit itself apparently found that this consultation was not a good basis for their plans. They reported to the governments that the consultation result showed an "overwhelming vote of the concerned industries in favor of software patents" and only a minority, mainly from the "opensource movement", was clamoring against software patents. But they did were not eager to display the results of the consultation on their website, and it was very hard to press them to publish at least a small part of the submissions. Most submissions have not yet been published, often in spite of repeated requests by the authors to have them published, and those that have been published have been transformed to a PDF format that makes them hard to use in any hypertext-based dialogue.

Thus the work of evaluating the consultation has largely been left to private initiatives like ours. The CEC Patent Unit has however ordered a summary analysis from an "independent contractor", which has been available internally since April and was released to the public at the beginning of August, together with the installation of a web-based online discussion forum.

The CEC online discussion forum is only web based, without an archive, incompatible with normal posting and referencing and automatisation mechanisms, depending on Javascript, in general poorly accessible, unacceptable for the people who have developped high standards of public communication in newsgroups and mailing lists. Since the Internet became popular, our representatives and their PR agencies have been trying hard to reinvent the wheel of civil culture, apparently hoping to change its shape from a circle to a square that matches their tv-based communication habits. Even though the Indprop Unit's attempt to at least engage in some form of dialogue seems commendable, citizens are not to blame for ignoring this type of government-designed "e-democracy". The forum attracted only 50 comments -- none from pro swpat people -- that were later hard to find and died very soon.

Let's do the remaining work together.

Most of the submissions fall into one of the following categories:

1. Small-scale studies from individual researchers/academics, carefully crafted, with original reasoning and references to relevant literature, e.g.
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2. Position papers from patent lawyers of large enterprises and industry associations that state the standard articles of faith from the credo of the patent movement and professionally play the mobilisation game of the CEC Industrial Property Unit, usually without more than schematic reference to the special situation of the body which they represent, written by a patent law expert of that body without review or even knowledge of other members of the organisation. These articles generally show a lack of basic knowledge on the European concept of technical invention and the debate on computer-programs that has been raging since the 60s. Instead they dwell much on the TRIPS fallacy and other well-known patent movement propaganda myths. It sounds as if these lawyers draw all their knowledge from a limited repertoire, comprising not much more than the "independent study" on which this consultation was based.
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3. Position papers from patent practicioners and their associations. Very similar to the above, reflecting the credo of patent circles, without knowledge of the concept of technical invention, without consideration for the risks of unlimited patentability, with naive claims about the economics of software, like the above group, but often a little bit less schematic, sometimes more aggressive.
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4. Position papers from other representatives of organisations with varying, less schematic viewpoints, not playing the game of the consultation paper but rather citing parts of it as appropriate for the (independently structured) argumentation.
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5. Statements of personal experience and opinion on software patentability, not closely oriented toward the paper
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6. Short political statements by individuals, most of whom fear negative effects of software patents.
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There are still more than 1300 unpublished statements, most of which probably belong to the last two categories and were initially published on the Eurolinux consultation site.