Software Patentability & EU Directive COD/2002/0047

  1. Current Status
  2. Quick History
  3. What We & Our MEPs Must Do
  4. 10 Reasons Why Software Ideas Must Remain Free From Patentability
  5. Some Examples of Directive Text Problems
  6. Links


Current Status

Check FFII's Software Patent News page for regularly updated news.

On July 6th 2005 the Parliament voted to reject the current form of the directive (by 648 votes to 14, with 18 abstentions). This is a good result for European software developers of all sorts; while we would have preferred to see a directive similar to the Parliaments first reading this is much better than having the Council text approved.

The directive would now appear to be dead since Commissioner McCreevy has previously stated that "...if the parliament was to reject the directive then I would not be putting another proposal on the table."

Slightly older news

The text being handed to the Parliament, by the Council, is an extremely pro-swpat text. By producing this text, the Council disregarded the Parliament's 1st reading input into the legislative process.

In the 2nd reading, for each amendment, an absent MEP is counted as a vote against. So we will need 60-65% of the present MEPs to vote for each amendment for it to be adopted. If the anti-swpat vote is split between two philosophies, both will lose. So the best course is to ask for a Yes vote on a broad range of amendments. This will produce a text that will require later fixing in a "conciliation process". Expecting to produce an imperfect text is ok because it's not the Parliament's job to produce enactable legislation. That is what the Council was supposed to do with the Parliament's amendments from the 1st reading.

On June 20th/21st, the JURI sub-committee of the European Parliament will meet to merge the 266 tabled amendments into a more understandable set that will be voted on by the Parliament on July 6th. Most of the 266 tabled amendments are duplicates.


Quick History

In February 2002, the European Commission drafted Directive COD/2002/0047 to "harmonise and unify" the patentabilty criteria of Europe's patent offices. This is a good goal, but the text of the Commission's directive contained some loopholes and undefined terms regarding what constitutes a patentable invention. These loopholes would make all software ideas legally patentable.

In September 2003, after numerous delays and sustained lobbying, we were pleased that the European Parliament heavily amended the directive to unambiguously confirm that software ideas should not patentable.

Unfortunately, in May 2004 the European Council discarded most of the Parliaments amendments, returning the text to an unclear state relying on undefined terminology. The loopholes of the Council's text would allow software ideas to be patented.


What We & Our MEPs Must Do

Remember when you contact your MEPs, to tell them what persons or groups represent a position similar to yours. Since your reading this page, likely candidates are IFSO, FSFE, and FFII.

To defend our right to develop and distribute software, and to protect Europe's software developers from endless patent litigation, our MEPs must bring back all of the Parliaments 1st reading amendments.

We have to make sure the MEP candidates are aware of this issue and what they must do. You can help by contacting MEP candidates. The only question that doesn't allow an ambiguous answer is "Will you vote to bring back all of the Parliaments amendments?"

If you need any help with what to say, or if you want someone to take over and explain the issue to an MEP, contact IFSO's Committee by email. There is also the fsfe-ie mailing list for public discussion.


10 Reasons Why Software Ideas Must Remain Free From Patentability

(For a slightly more detailed explanation, please read IFSO's recent Letter to the Council, and our original Letter to the Parliament.)

  1. There are currently no costs, waiting periods, or application forms required for software development. Patentability would radically change this and would invalidate many development and business models.
  2. Software already has "ownership rights" via the copyright system. Copyright is instant, costs nothing, and doesn't interfere with independent development.
  3. If companies could purchase exclusive rights to the use of techniques required by their defacto standards, they could choose their competitors. "Competition" would become an inside joke, and preventing competition would be completely legal and above board.
  4. Small and medium enterprises can't afford patents, they can't spare time for patent searches and they can't risk the cost of contesting an accusation in court.
  5. The patent term (20 years) is absurdly long in terms of the software industry.
  6. Innovation in software is incremental, new ideas build on the old. To advance the state of the art, developers must be permitted to build on top of the state of the art.
  7. Software is abstract, like maths. Software ideas can be described in any number of ways, so searches for software patents would be hit-and-miss. Reliably avoiding patent infringement would be impossible.
  8. Engineering, manufacturing, and pharmaceutical patents are industrial regulations. Software idea patents would place restrictions on what all businesses and all individual computer owners can do with their computer.
  9. In the USA, to get around the burden of software idea patents, the Big Players of the software industry have formed cartel-like patent sharing agreements. Small and medium enterprises cannot afford to join these agreements, and NONE of the Big Players are European companies.
  10. For Europe to develop its own software industry, we must retain the right to write our own software - without having to ask permission or pay royalties to current (foreign) market leaders.


Some Examples of Directive Text Problems

Two of the larger problems with the text of the directive:

The "as such" Problem

The Council added the following: Article 4a(1) "A computer program as such cannot constitute a patentable invention."

At first reading this appears to exclude software from patentability but the "as such" in this usage means "as a computer program". So patent applicants simply describe their innovation as being more than just a computer program, i.e "An invention comprising (A) a computer of limited resources, (B) software which, upon loading into the memory of (A) causes process XYX to occur".

The "technical effect" Problem

The directive says that for an innovation to be patentable, it must cause a "technical effect", but this term isn't defined. Software could be interpretted as having a technical effect.

Since patent offices are paid for the applications they accept, not the ones they reject, there are incentives for them to look for avenues which allow them to sell more patents. The final directive must be unambiguous.