Heise on EU Council's SW Patent Intransigence

(Software is not patentable in Europe.  The European Patent 
Convention established in the 70's that software "as such" was not 
patentable.  Of late, the EU Parliament stood up and spoke clearly on 
the issue, rebuking the EU Commission's bizarre Directive on 
"Computer-Implemented Inventions," purportedly designed to "clarify 
existing practice" when in fact it was designed to legitimize the 
European Patent Office's illegal practice of granting software patents 
in direct contravention of the law (interpreting "as such" in 
incredibly weird ways).  The EU Parliament did the clarification that 
the Commission had pretended to do, thoroughly amending the Directive to 
make it perfectly clear that by no means could it be used to allow the 
patenting of software.  Now, in the final legislative step, the EU 
Commission sends back nearly the same Directive for final ratification 
by the Parliament, hoping to convince the EU Parliament that either they 
were clueless or they had been duped by activists who had alerted them 
to the game that was up.  -- Seth)


> http://www.heise.de/english/newsticker/news/44931


EU Council agitates for unlimited software patents


Published 24.02.2004 09:58 


Faster than expected, the Council of the European Union, currently 
presided by Ireland, has defined its position in the controversial 
discussion on software patents. Its working paper about the issue is 
scheduled for discussion in the "Intellectual property" working party on 
March, 2nd. But even before, software patent opponents like the 
Foundation for a Free Information Infrastructure (FFII) meet it with 
harsh criticism. Main issue of the comments on FFII's website: The 
council's experts have cancelled almost all of the patentability 
limitations on "computer-implemented inventions" which have been agreed 
on by the European Parliament after long and controverse debates in 
September 2003. 

"Cancelled" or "reformulated" is the standard comment in the footnotes 
whenever the new text speaks about the changes of the Parliament. The 
Council does some small concessions to the software patent opponents, 
i.e. the impact of the EU legislation for "small and mid-sized companies 
and the Open Source movement" shell be examined. This is however, no 
"compromise" in any way, FFII counters the Council's terminology. "It's 
as if in a debate on whether or not we should raise the speed limits on 
the roads, the compromise would be to raise them and additionally remove 
the requirement to wear seat belts", Belgian FFII spokesman Jonas Maebe 
comments on the proposal.

FFII is especially concerned about the renewed displacement of an exact 
definition for "computer-implemented inventions". Now, the "technical 
contribution", which is to be decessive for granting a state-run monopol 
protection in form of a patent, shell be measured only by "how far the 
patent claimed item [...] is raised above the state-of-the-art". Arguing 
this way, the Council's authors follow the so-called "holism theory", 
FFII's Hartmut Pilch says. This theory, however, is said to be out of 
the question thoughout the complete technical literature. In the end, it 
would allow "technical" protection claims for everything, including 
patents on business methods, which is explicitly against the targets not 
only of the EU Council, but also of the EU Commission and the 
Parliament, as such items should be generally unprotectable and excluded 
from the directive. The core of the present patent jurisdiction and the 
Parliament's version of the directive, namely dataprocessing not being 
"technically", would be lost, Pilch warns in an interview with heise 
online. Such an approach does even contradict international treaties 
like the TRIPS convention of the World Intellectual Property 
Organization (WIPO), normally one of the patent lobbie's favourites. A 
clear definition of "technicity" in the directive is indispensable.

Additionally, the FFII sees a provocation in the Council's attempt to 
permit patent claims also on the source code of a computer program by 
the means of the directive's resurrected article 5 (2). Patent opponents 
do fear especially an extreme constraint on publication freedom, as 
developers, distributors of software, and generally information 
providers, simply by only hosting patent-protected code in the net, will 
come under heavy fire of the patent justice. Those information providers 
could be handled just as "suppliers of industrial goods". Furthermore, 
FFII misses the interopability privilege, which has been introduced by 
the Parliament and shell prevent monopols on technical standards. Also, 
the Council has removed the demand on patent owners to publish their 
protected program codes for public interest.

FFII sees a strategy behind the "complete confusion of terms" Pilch 
finds immanent to the Council's working paper. It's a sign, Pilch says 
to heise online, to establish the European Patent Office's boards of 
appeal and their broadened practice as real patenting standard for the 
future: "It seems as if the Council's working party wants to bury the 
whole directive". Then, a European gouvernment conference could cancel 
article 52 of the European Patent Convention, which currently prohibits 
protection claims on programs "themselves" - at least by wording. To 
prevent this from happening, FFII would prefer that not only the members 
of the EU Parliament but also national parlamentarians took the chance 
to stronger influence Bruxelle's legislative by motions of a resolution.

Thanks to Dirk Hillbrecht for the translation of the German news 
article.