Steps Out of the European Software Patent Deadlock

They have almost succeded in driving the directive against the wall by means of a Political Agreement on a Common Position of the Commission and Council, reached on 2004-05-18 by an (un)qualified majority.

But the agreement has not yet been enacted and the majority is in fact unqualified, in spite of efforts on the part of the Presidency and Commission to prevent this from becoming apparent.

If governments want to get out of the deadlock and secure a future for the directive project and for a rational legislative process in the interest of Europe's citizens and industry, it might want to orient itself by the following steps.

1. delete "magical" wordings "either as source code or object code" that were inserted by Bolkestein into Art 4A in the last minute. Reason: Nobody wants patents on individual expressions or singular instances of programs. These insertions serve no regulatory purpose but rather impose an interpretation on Art 52 EPC which makes the law meaningless and, probably for that reason, is rejected by the German Federal Court and even by the EPO. Delete such wordings also from recitals where they occur. The directive should not reinterpret the EPC in a way that does not conform to the normal rules of interpretation of law.
2. delete Article 5(2). Reason: The double negations are deceptive. This article makes software on its own patentable. What is claimed must be what is invented. If a "program, characterised by ..." is claimed, then nothing more than a program (as such) was invented. If an information structure can be a patentable invention, then there is no point in talking any more about definitions of "technical". The European Commission refused program claims in its proposal of 2002 for good reasons. Allowing them closes the door to all discussions and would therefore mean that the Council intends to kill the directive project.
3. Delete recital 17. This recital says that a right to interoperate can be secured only through antitrust procedings. This again removes room for negotiations and represents a deterioration of the directive in comparison to the Commission's version of 2002.
4. Define key terminology, concretise TRIPs This approach, found in several provisions of Art 2 and 3, was supported several delegations in the Council and by the Bundestag. Interpretable concepts such as "technical", "invention" etc may be most appropriate at the WTO treaty level, but need concretisation at the level of legislation, especially when the claimed purpose is to clarify. The "forces of nature" definitions have a proven legal theory and practise to back them.
5. Support the Interoperability Privilege. Article 6a received the support of all three committees of the European Parliament and the plenary as well as the nearly the whole ICT industry, including some large companies such as Sun Microsystems which normally let their patent departments formulate patent policies on their behalf. It is also needed to concretise Art 30 TRIPs.