Everybody in the European Parliament (EP) seems to agree that we want clear limits on patentability and that they should be enforced throughout the EU. But there is disagreement as to whether the proposed software patent directive brings us anywhere close to that goal. This meeting in EP room A8F 388 at 14.-16.00 may be the last opportunity for software innovators and MEPs to examine the proposed Software Patentability Directive before the scheduled vote in the Legal Affairs Committee (JURI).

• Time & Place
• Annotated Links

The European Parliament is located at Rue Wirtz / Wirtzstraat 60, right beside Luxemburg Railway Station / Gare de Luxembourg. ASP stands for Altiero Spinelli = Spinelli Building.

Annotated Links

The documents listed below will be available in printed form at the meeting. Copies of most of them will be handed out to each participant.

	European Commission wants Unlimited Patentability Directive Draft by BSA
	Counter-Proposal
	Call for Action
	Europarl Events
	Support Now!

2003/06/10 Europarl Meeting Wiki Some more info about our event may be found here. JURI 2003/04-6 Amendments: Real and Fake Limits on Patentability Members of the European Parliament's Commission on Legal Affairs and the Internal Market (JURI) submitted amendments to the European Commission's software patent directive proposal. While some MEPs are asking to bring the directive in line with Art 52 EPC so as to clearly restate that programs for computers are not patentable inventions, another group of MEPs is endorsing the EPO's recent practice of unlimited patentability, shrouded in more or less euphemistic wordings. Among the latter, some propose to make programs directly claimable, so as to ensure that software patents are not only granted but achieve maximal blocking effects. This latter group obtained a 2/3 majority, with some exceptions. We document in tabular form what was at stake, what various parties recommended, and what JURI finally voted for on 2003/06/17. McCarthy 2003/05/03: Software Patent Directive Proposal FAQ Arlene McCarthy, member of the European Parliament and rapporteur of the Legal Affairs Commission (JURI) on the Software Patentability Directive Proposal explains her point of view in a FAQ manner. She asked us to distribute this document to the participants of a conference which we organised in Brussels. In a nutshell, she says that Software patents, as granted by the European Patent Office (EPO) at present, are needed for various reasons, e.g. protecting Europe against competition from Asia, allowing European SMEs to compete in the US, etc The EPO is granting software patents but not patents on non-technical algorithms and business methods. The current proposal is designed to ensure that the EPO's practise is followed throughout Europe in a uniform manner and that a drift toward patenting of "non-technical algorithms and business methods" is halted. We debug McCarthy's questions and answers one by one. It seems that many of McCarthy's proclaimed objectives could be achieved only by voting in favor of a series of CULT, ITRE and JURI amendment proposals which unfortunately have not enjoyed the support of the rapporteur. Patentability Legislation Benchmarking Test Suite In order to test a law proposal, we try it out on a set of sample innovations. Each innovation is described in terms of prior art, a technical contribution (invention) and a small set of claims. Assuming that the descriptions are correct, we then test our proposed legislation on them. The focus is on clarity and adequacy: does the proposed rule lead to a predictable verdict? Which of the claims, if any, will be accepted? Is this result what we want? We try out different law proposals for the same test series and see which scores best. Software professionals believe that you should "first fix the bugs, then release the code". Test suites are a common way of achieving this. Pursuant to Art 27 TRIPS, legislation belongs to a "field of technology" called "social engineering", doesn't it? Technology or not, it is time to approach legislation with the same methodological rigor that is applicable wherever bad design decisions can significantly affect people's lives. Bessen & Hunt 2003/05: An Empirical Look at Software Patents James Bessen (Research on Innovation and MIT) and Robert M. Hunt (Federal Reserve Bank of Philadelphia) in a study published in May 2003 present extensive statistical data and analysis to corroborate their hypothesis that software patenting has substituted rather than promoted R&D investments. Software patents are serving as cheap alternatives to real innovation. EPO T 22/85: Document Processing System Patent Rejected, 1984 as Program, 1988 as Algorithm The EPO's Technical Board of Appeal rejects a patent application which is directed to a program for computers. In 1984, the EPO's examiners had rejected the patent based on the original Examination Guidelines of 1978, saying that the claims, by referring to classical computing equipment and rules for using it, described nothing but a program for computers [ as such ]. Later, due to the EPO's policy changes 1985/86, the Board of Appeal no longer bases its rejection on the fact that the claim is directed to a program for computers, but on the fact that the innovation falls into the category of "schemes, rules and methods for performing mental acts" and does not become patentable merely because it is applied to a computer. EPO TBA 2002/03 T 49/99: information modelling not technical, computer-implementation not new In March 2002, a Technical Board of Appeal at the European Patent Office (EPO) rejects a patent application for a computerised information modelling system on the grounds that the subject matter is not an invention according to Art 52 EPC. The Board argues largely in the original spirit of the EPO and differs significantly from some other recent EPO caselaw. This is an important reason why industrial patent lawyers are pressing for new patentability legislation. Under a CEC/McCarthy directive, EPO decisions such as this one would no longer be possible. BPatG Error Search 2002/03/26: system for improved computing efficiency = program as such The 17th senate of the Federal Patent Court (BPatG/17) rejects a patent claim on a method for automatically correcting erroneous text strings due to lack of technical character and violation of Art 52 EPC / §1 PatG. Saving computing time or storage space cannot constitute a patentable achievement, because otherwise any computer program (any teaching for use of computers) would become patentable subject matter. The senate leaves open the question whether program claims could be admissible according to §1 PatG, when the process claim to which they refer is grantable. Earlier BPatG/17 had argued that program claims are not permissible under Art 52.2c, but BGH/10 had found the argumentation unsatisfactory and sent the case back with the request that the teaching in the process claim should be examined first. FFII Community Tool Allows you to register for our meeting, to contact MEPs, and to cooperate in other ways EU event planning mailing list Call for Action The European Commission's proposal for the patentability of software innovations requires a clear response from the European Parliament, the member state governments and other political players. Here is what we think should be done. EU Software Patent Directive Amendment Proposals The European Commission proposed on 2002-02-20 to consider computer programs as patentable inventions and make it very difficult not to grant a patent on an algorithm or a business method that is claimed with the typical features of a computer program (e.g. computer, i/o, memory etc). We have worked out a counter-proposal that upholds the freedom of computer-aided reasoning, calculating, organising and formulating and the copyright property-based property rights of software authors while supporting the patentability of technical inventions (problem solutions involving forces of nature) according to the differentiations that have been laid down in the European Patent Convention (EPC), the TRIPs treaty and the classical patent law literature. This counter-proposal is receiving support from numerous prominent players in the fields of software, economics, politics and law. Quotations on the question of the patentability of rules of organisation and calculation Salient quotations from law texts, economic analyses, political documents as well as statements by programmers, politicians and other parties interested in the debate about software patents. Software Patent Discussions in and near the European Parliament in 2003 The European Parliament may pass or reject the Software Patentability Directive Proposal of the European Commission immediately after plenary discussion on 2003-09-01. The most likely course is that it will propose amendments. Currently many members of the three concerned commissions (juri, itre, cult) have lost confidence in the Newspeak from the European Patent Office (EPO), in which the proposal is written. We are trying to keep track of the Parliament's schedule and to organise some complementary occasions for an informed discussion. In fact we want more than that: justice. The patent lobby has trampled on our rights without justification and is asking MEPs to perpetuate the injustice. We ask for a fair trial. Only the European Parliament can offer it. Tamai 1998: Abstraction orientated property of software and its relation to patentability Prof Tamai of Tokyo University shows how patenting of software clashes with some of the underlying assumptions of the patent system. The patent system relies on requirements such as concreteness and physical substance in order to keep the breadth of claims within reasonable limits. Software innovation however is the art of making processes as general as possible, i.e. the art of abstraction. Tamai quotes a set of patent claims from the SOFTIC symposium of 1993, where patent officials from JP, US and EU judged the patentability of an example algorithm at different levels of concretisation. The European representative was more willing than his colleagues from US and JP to grant patents on abstract claims, but even he shyed back from granting them at the level that really represents the innovative achievement. Tamai shows how this inconsistency leads to a series of other inconsistencies. Tamai sees only two ways out of the inconsistency: (1) acceptance of abstract claims (2) exclusion of software patents. 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 computer-implemented rules of organisation and calculation (programs for computers). Now Europe's patent movement is pressing to consolidate this practise by writing a new law. Europe's programmers and citizens are facing considerable risks. Here you find the basic documentation, starting from a short overview and the latest news.