Won't make further contributions to this online debate now

Posted Aug 25, 2005 9:36 UTC (Thu) by FlorianMueller (guest, #32048) [Link]

The fact is that we have swpats in Europe. The European Patent Office and national patent offices have granted tens of thousands of them.

Right now, however, their legal basis is rather weak since article 52 of the European Patent Convention expressly excludes "programs for computers [as such]" from the scope of patentable subject matter. VP Cheney's former employer Halliburton just lost a case in the High Court of England and Wales, which declared a software patent invalid, and the judge explained in his ruling that the EU directive would have softened up the criteria (in other words, it would have legalized many swpats that the courts can overturn right now).

It's true that the pro-swpat forces won't quit, nor will we. Right now we have the statutory law that we want and they have the case law at the level of the EPO (not in national jurisdictions) that they want. Sooner or later, a point will have to be reached at which either the EPO changes its practice and fully complies with the law (that's what we want) or national jurisdictions accept the EPO approach (that's what the pro-swpat forces want).

The fact of the matter is that the other camp has now had two failed attempts at changing the statutory law in their favor. They held a diplomatic conference in the year 2000, and the FFII (and others, but primarily the FFII) mobilized some resistance. The EU directive was just a fallback plan of the other camp because of that earlier failure, and now that Plan B has failed as well, so there'll be a "Plan B2" (a new attempt at pushing that kind of directive through, which is what they did when they didn't get gene patents the first time) or a "Plan C" (a different approach, such as through the community patent directive).

The European Parliament will return from its summer break on Monday, and that's when the debate will basically be continued in one way or another.

However, a legislative process which for the first time in the history of the European Union resulted in the outright rejection of a proposal of the EU Council (i.e., EU member state governments) by the European Parliament, and which produced a variety of interesting and funny anecdotes, deserves to be chronicled regardless of if and when the issue itself will make it back on the political agenda.