Software Patents in Europe [LWN.net]

From:		"R.A.Matthews" <noreply-AT-ramatthews.free-online.co.uk>
To:		letters-AT-lwn.net
Subject:		Software Patents in Europe
Date:		Wed, 30 Mar 2005 18:48:21 +0100

[Reply to: patent at ramatthews dot free-online dot co dot uk]

Recent, and worrying, articles on software patents in Europe led me
to contact my local European Member of Parliament: Chris Huhne.
I asked him for an update on the situation and he kindly obliged.
Note that Chris has been following this matter, so he should know -
though of course what I say here is my interpretation of what he says.

All this comes from an attempt to clarify how to deal with computer
related inventions, on a Europe-wide basis.

The Council of Ministers (representing the national
governments) has produced one set of words on the subject, and
the European Parliament (elected by the public) has produced
another. These two organisations must now work out an agreed
set of words.

Note that the Parliament has NOT been bypassed on this: the
two are discussing this and will continue to discuss it until
agreement is reached.

So far they have agreed a subset. Of particular interest
are the following:

1) US-style software patents will NOT be implemented in
   Europe. Software, like mathematics, will be treated
   as something abstract and so not suitable for patenting.

2) A hardware device, with all the required qualities
   of newness, etc, will be patentable. Such a device could
   contain software and when that software runs in the device
   it will be covered by the device's patent. But when the
   software runs outside the device, then the patent
   does not apply.

3) The Commission (the EU's bureaucracy) will monitor the impact of
   computer-implemented inventions on innovation and competition, both
   within Europe and internationally, and on European businesses,
   especially small and medium-sized enterprises, and the open source
   community, and electronic commerce.

Now getting the wording right for (2) above, avoiding too
many grey areas and loopholes is the tricky part. However
there is a form of words available and, already, some
case law to support it, so it looks likely that it can
be done.

Note that (3) above is a straight quote from the currently agreed
text: nice to see open source explicitly mentioned.

An important area they are still working on relates to interoperability
between computer products. Apparently this requires great care
with the wording, but both agree that this is an important area
to be covered.

Robert A. Matthews

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Software Patents in Europe

Posted Mar 31, 2005 10:14 UTC (Thu) by tialaramex (subscriber, #21167) [Link]

Unless I'm much mistaken Chris Huhne has been duped

the "form of words available and, already, some case law to support it" seems to refer to boilerplate that huge corporations like IBM have been using to get software patents under the noses of the patent clerks.

Essentially your patent lawyer writes "this isn't a software patent, honest, it needs special hardware, and the hardware shall consist of some kind of computer", but in the form of several paragraphs of dense patent jargon. That is, instead of patenting the algorithm, they patent all practical implementations of the algorithm, a change too subtle to be of any use to us.

Software Patents in Europe

Posted Apr 1, 2005 13:21 UTC (Fri) by gc (guest, #24112) [Link]

The 3 described points are the main contents of a text adopted by the Council adopted on 7th of March, but not what the Parliament has agreed on, as far as I know. The Parliament will get its hands on this text within 3 months beginning 7th of March, and either:

1. Approve the text (simple majority needed); text is accepted.
2. Reject the text (absolute majority needed - more than 50% of representatives, comprising those not attending); in such a case, the co-decision process is over and the text is definitively rejected.
3. Update the text; in such a case, co-decision process continues by more discussions between the two parts.

Ref (in french): http://linuxfr.org/2005/03/07/18439.html

In the end, as said the other poster, what's important is the interpretation of the limitations imposed by the text (pure software not patentable), which I don't know. But as we know how act the big corporations, we'd probably need very precise and strong protections to avoid actual software patentability with the help of patent tricks.

Software Patents in Europe

Posted Apr 8, 2005 16:21 UTC (Fri) by raboofje (guest, #26972) [Link]

It's debatable whether the Parliament has been bypassed or not.

The letter seems to imply that Parliament and Council arrived at their `set of words' independently. This is not true: the Council drafted the first version. This version was then, as is normal, passed to Parliament for review. Parliament proposed a number of amendments that mostly made the vague text more clear, and ensured stuff like the subset they claim to agree on is also actually clearly in the text.

Council got the text back, and basically threw away most of those amendments.

There is even more to it: even though Parliament backed the (amended!) proposal with a slim majority back then, times have changed, new countries joined the EU and some countries (often under pressure from their local governments) changed their minds. Based on a strong advice from the JURI (the EU legal council), Parliament asked the Council to restart the procedure. This request, too, was ignored by the Council.