The European software patent vote [LWN.net]

September 24, 2003

This article was contributed by Joe 'Zonker' Brockmeier.

Members of the European Parliament (MEPs) passed Arlene McCarthy's proposed patent directive this Wednesday, with numerous amendments that may mean a victory for the open source community and others opposed to software and business practice patents. The full text of the passed directive is available for those who are interested (thanks to James Heald). As a result of the Foundation for a Free Information Infrastructure (FFII) and many others, software patents in Europe have been staved off -- for now.

However, we have miles to go with regards to the directive. This vote is not the final say in the matter. The European Parliament will vote again on the directive, but after it has been addressed by the European Commission (EC). It's entirely possible that the directive passed by the parliament will be rejected by the EC, or that the original directive without the amendments will be approved by the EC. LWN reader Ciaran O'Riordan notes that in the event that the original is approved, Parliament will not have a second chance to address the directive and McCarthy's original draft will be enacted.

Under the amended directive, an inventor may patent a "programmed device," but patents on software and business methods are specifically excluded. Amendment 3a specifically disallows any patents in the field of data processing, while 2b specifically requires an invention to be "susceptible of industrial application." Amendment 2d specifies "industry" as the "automated production of material goods." Presumably this means that one cannot patent entertainment devices or other goods specifically targed for consumer use.

Further, patent applications for programmed devices must include "a well-functioning and well documented reference implementation of such a program is published as part of the patent description without any restricting licensing terms." This means that, should the amended directive go through, inventors will not be able to prevent interoperability with their devices through obscurity. Readers in the United States may be interested to know that the U.S. government has chimed in with opposition to article 6a, which states that patents can not be used to block interoperability:

Member States shall ensure that, wherever the use of a patented technique is needed for a significant purpose such as ensuring conversion of the conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement.

The amended directive is a vast improvement over McCarthy's original proposal. However, Jonas Maebe, a Belgian FFII representative, says the approved draft still needs work:

The recitals were not amended thouroughly. One of them still claims algorithms to be patentable when they solve a technical problem. But we have all the ingredients for a good directive. We've been able to do the rough sculpting work. Now the patching work can begin. The spirit of the European Patent Convention is 80% reaffirmed, and the Parliament is in a good position to remove the remaining inconsistencies in the second reading.

That assumes, of course, that there is a second reading to be had. When speaking to Parliament during the Plenary Debate the day before the vote, EC Commissioner Frits Bolkestein issued (PDF format) a not-too-veiled threat to remove parliament from the process entirely:

If we fail in our efforts to achieve a harmonisation of patent law relating to computer-implemented inventions in the European Union, we may well be confronted with a renegotiation of the European Patent Convention. The process of renegotiation of the European Patent Convention would not require any contribution from this parliament. So the situation is clear: there is a single objective but a choice of means. Either we proceed using the community method, or we take a back seat and watch while member states go via the route of an intergovernmental treaty. It is clear that proceeding via this Parliament would give European citizens a greater say in patent legislation, an area which is so crucial to our economy.

A renegotiation of the European Patent Convention could be a worst-case scenario for users of open source. While those who stood in opposition to the original draft deserve congratulations and the opportunity to enjoy their victory, they'll have little time to rest.

Index entries for this article
GuestArticles	Brockmeier, Joe

The European software patent vote

Posted Sep 25, 2003 4:45 UTC (Thu) by jdthood (guest, #4157) [Link]

Thanks to LWN for pulling together this summary in the hours before
publication.

> EC Commissioner Frits Bolkestein issued a not-too-veiled threat
> to remove parliament from the process entirely

This threat has to be taken seriously; the European Parliament is
still a weak institution. However, it won't become stronger if it
gives in to this sort of pressure. The Council of Ministers and the
Commission may bypass the Parliament on this issue, but it remains
very important that the Parliament maintained its integrity. It is
important that the most democratically legitimate EU institution
shares (to some extent) the ideals of the free software movement.

The European software patent vote

Posted Sep 25, 2003 11:52 UTC (Thu) by arcticwolf (guest, #8341) [Link]

Bolkestein's threats just go to show that Europe really is in dire need of a constitution that will make sure it actually becomes a parliamentary democracy on the European level.

The European software patent vote

Posted Sep 25, 2003 15:22 UTC (Thu) by cross (guest, #13601) [Link]

> Readers in the United States may be interested to know that the U.S.
> government has chimed in with opposition to article 6a, which states
> that patents can not be used to block interoperability:

I find the US interference in the process troubling, especially having read the FFII's take on the matter.

""The US" is propagating conventional wisdom such as "the more patents the more property, the more property the more innovation", which is in sharp contrast to consensus of all serious scholars of software economics, as expressed in numerous studies conducted in the USA and in reports by the US Academy of Sciences. Moreover, "the US" has been ignoring the voice of its own software industry, which is, as shown by last year's FTC hearings, characterised by "continued animosity against software patents" and whose major players, including such companies as Adobe, Oracle and Autodesk, all opposed software patentability at the USPTO hearing of 1994. The same USPTO which is ghostwriting this paper in the name of "the US" today proceded to legalise program claims shortly after the 1994 hearing, thereby completely ignoring the voice of the US software industry."

As the United States is seeking to rewrite European law to their agenda, what steps can European Citizens take to help turn the USPTO agenda around into something approaching the spirit of the US Constitution and those who wrote it?