Software patents

(Redirected from Software Patents)

The Problem

Unlike copyright, patents can block independent creations. Software patents can render software copyright useless. One copyrighted work can be covered by hundreds of patents of which the author doesn't even know but for whose infringement he and his users can be sued. Some of these patents may be impossible to work around, because they are broad or because they are part of communication standards.

While traditional patents were for concrete and physical inventions, software patents cover ideas. Instead of patenting a specific mousetrap, you patent any "means of trapping mammals" or "means of trapping data in an emulated environment". The fact that the universal logic device called "computer" is used for this does not constitute a limitation. When software is patentable, anything is patentable.

What is it?

The long-standing and divisive issue over whether to change EU patent law to allow for the patenting of software.

Executive Summary

Software patents have been a controversial issue in Europe. Currently, the European Patent Convention states that software as such is not patentable, although patents have been granted by the European Patent Office (EPO)for inventions involving software where there is sufficient technical character for the invention not to be considered software as such. The EPO is seen as pro software patents but these patents are then over turned by national courts. The fear is that harmonizing European law and streamlining the patent process will lead to the kinds of abuses seen in the US. Critics say software patents favour large companies over small ones and could impact open-source software innovation. Others say that software patents benefit small companies more than large companies.[1][2]

The push to get the European Parliament to pass a law that would legalise software patents failed. The next attempt has been to push for a Community Patent. The Community Patent isn’t going to happen any time soon. There is too much resistance against it.

The European Patent Litigation Agreement is seen as the current threat. If it were to be ratified in any form near the current draft, there would be a flood of software patent lawsuits in Europe.

The EPLA would change the judicial system in Europe for patent litigation. Any dispute involving a patent granted by the European Patent Office would go before a new European Patent Court (EPCt). The judges serving on the EPCt would be hand-picked: unlike the national courts that decide on patent infringement cases now, the EPCt would (almost certainly) have the EPO’s philosophy with respect to software patents. The EPCt would uphold the kinds of software patents that national courts throw out now. And the EPCt would probably have a general tendency to rule in favour of right holders rather than the defendants.

What does this mean for me?

Why do I care?

Software patents could make some of the software-based products and services that we use every day several times more expensive. Former French prime minister Michel Rocard classified the software patent directive as one of the most important decisions facing Europe in all of economic policy.

These days almost every white-collar worker spends a significant amount of time at a computer

Pro Software Patent Arguments

European Information and Communications Technology Association Microsoft, Nokia, Siemens and a number of other companies had been pushing hard for EU adoption, saying that it would encourage research and development while lowering costs for them.

No one ever admits to wanting software patents. They say they are after computer-implemented inventions. From a practical perspective, those terms are often synonymous.

Anti Software Patent Arguments

Anti Software Patent lobbyists say that patents stifle innovation and competition. They point to the advantages of the current system such as the fact that European companies do not need to devote resources to amassing stockpiles of patents like their US counterparts. Small and medium sized businesses and the free software community would be at a competitive disadvantage and they would hinder innovation.

"Computer-implemented inventions" is a misleading term because it sounds like a truly technical invention, like a computer-controlled car brake. Reality is such that even the concept of a progress bar on a computer screen has been classified by the European Patent Office as a "computer-implemented invention". How did they do that? They determined that a progress bar makes more efficient use of the limited space on a computer screen. By classifying a computer monitor as a technical device, the progress bar all of a sudden becomes a monitor-related technical invention like an invention that optimizes the sharpness of a liquid crystal display.

Pieter Hintjens, president of the FFII, points out: "the EU above all needs a technology sector that is free from the ruinously expensive litigation that is strangling the US hi-tech industry. While the cost of obtaining an EU patent is high, the cost of defending against junk patents is much higher. It is junk patents, software patents, and business process patents, backed by EPO 'judges', that form a real and present danger to the EU hi-tech industry."

Pieter Hintjens concludes: "even as the US is fighting off the scourge of junk patents, the EU Commission and EPO have been leading the race to the bottom, granting large numbers of weak patents, and especially, software and business process patents. McCreevy's 'community patent' does not solve the software patent problems at the EPO. Rather, it makes them worse."

A senior UK judge, Judge Jacob, said that the scenario in which the same EPO bureaucrats would issue patents and also sit as judge and jury on patent litigation would be a disaster for the EU.

FFII Free Software Foundation Europe

"We buried a bad law and did so without flowers," said Eva Lichtenberger, an Austrian member of the parliament's Green group. "The legislation would have hindered the development of small companies and helped big businesses because they are the only ones that can afford patent lawyers and litigation costs."


The issue of software patents has been a hot one in Europe over the past couple of years. Originally introduced into the European Parliament in May 2004, the software patent directive was lobbied heavily by both sides with many MEPs saying they had received more correspondence on this one issue than they had on any other. The directive followed a bumpy course in and around the European Parliament, seemingly approved at one point and shot down at another. The European Parliament finally rejected the software patent directive on 6 July 2005 a 648-14 vote.

Since this vote a new push has started for software patents using the "Community Patent", which would establish the EPO as the arbiter of patents in Europe.

Recently, the High Court of England and Wales ruled that two patents granted by the EPO were invalid on UK territory and emphasised the need for computer programs to be excluded from the scope of patent law even in cases where the use of a program produces a physical effect.