EU Council "Compromise" for Unlimited Patentability
For immediate Release

The EU Council's "Working Party on Intellectual Property (Patents)" is scheduled to meet on March 2nd to discuss the European Parliament's amendments to the software patent directive.

The discussion is based on a confidential working document titled "Council Presidency Compromise Paper". This proposal removes everything from the Parliament's amendments that limits patentability, including:

  1. All definitions of "technical", "invention" and "industrial" are removed, and yet patentability is limited by nothing but these terms.
  2. Freedom of publication is removed from Art 5, instead information goods become directly claimable, so that internet service providers can be sued for allowing publication of independently developped programs on their server. (see Program Claims: Bans on Publication of Patent Descriptions)
  3. Art 6a (freedom of interoperation) is removed. This way Microsoft receives green light for its new licensing program on file formats, and large software and telecommunication companies can charge fees for the use of the next generation of Internet standards.
  4. A few cosmetic amendments by EPO-friendly MEPs such as Arlene McCarthy and Joachim Wuermeling are admitted into the draft. Among these are amendments which were rejected by the European Parliament in the plenary vote.

see EU Council 2004 Proposal on Software Patents and EU Software Patent Directive: Parliament's vs Council's Version

Jonas Maebe, speaker of FFII in Belgium, comments on the Irish presidency's "compromise":

It's as if in the debate on whether or not we should allow new member states to join the EU, the compromise would be to not allow them, and in addition to impose trade sanctions on them.

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.

What is a compromise and what not should become clearer if we put the various proposals on a scale:

0no patents at allmany economists but no organised stakeholders in the current debate
1no patents on anything that somehow touches softwareCertain imaginary players such as Arlene McCarthy's Free Software Alliance and the "few large software distributors" painted by patent attorney Dr. Kai Brandt in a magazine for Siemens employees.
2no patents on pure software, guarantee freedom of publication and interoperationEuropean Parliament 2003-09-24, FFII
3unlimited patentability, limited enforcabilityCommission 2002-02-20, JURI 2003-06-17
4unlimited patentability, unlimited enforcabilityEU Council 2004 Proposal on Software Patents

It should be noted that the Council was pushed toward its extreme position by the Commission, as can be seen from a leaked Commission's paper of 2003/11.

This paper is full of untrue derogatory statements about the European Parliament's work, and it shows between the lines that the Commission's IP official would have liked to opt for program claims as well.

At the same time, the patent lawyers of large ICT companies are involving their CEOs in a letter-writing campaign to discredit the European Parliament's vote in the eyes of political decisionmakers.

The CEO letters and accompanying statements by the corporate patent lawyers attempt to spread fears that the EP amendments would prevent patenting of processes in traditional technical fields, such as industrial robots etc, as soon as a computer is used to control them, and that such a restrictive approach to patentability would seriously discourage innovation. Both fears are groundless. The Parliament's position is well in line with the famous Anti Blocking System decision of the German Federal Court. It allows patents on any process that imparts new empirical knowledge about forces of nature (e.g. relations of temperature and friction in automobile brakes), regardless of whether such a process is computer-controlled or not. The work of the process engineer is patentable, while that of the programmer falls under copyright. The Parliament has voted for the very consensus position which the CEOs say they want.

The trouble is that the corporate patent lawyers behind these CEOs want to patent much more than what the general consensus allows. Attentive readers easily notice that they are not asking for patents on computer-controlled robots or industrial processes, but for legalisation of 30000 US-style patents on algorithms and business methods, claimed in terms of conventional general-purpose data-processing equipment, which the European Patent Office has granted against the letter and spirit of the written law in recent years.

The pro-patent campaigners are mainly managers of large corporate patent departments. Thanks to an inflationary practise of patent offices, they have gained great importance in recent years and are fighting to increase this importance. The patent arms of the European Commission and national governments share the interests of the campaigners and have been equally successful in dominating the patent policy of their respective bodies. Ever since the EU software patent directive project started in 1997, this well-organised and well-entrenched movement has pushed for unlimited patentability by spreading propaganda in the name of big authorities (governments, associations, CEOs), apparently hoping that these will compel legislators to obey without asking any questions.

Meanwhile, a group of parlamentarians, software companies and associations has published a Call for Action in which it criticises the attempts of the patent movement to "deceive and intimidate the European Parliament" and calls on national MPs to formulate their national patent policies and to supervise the activities of their government's patent experts in the Council, so as to make sure that they loyally serve their national policies.

It is common practise of the patent experts in the Council to act on their own, ignoring or circumventing any instructions from their ministers even in the rare case that such instructions exist. The Council's Patent Working Party moreover provides a veil of anonymity where national patent policy representatives can take any point of view they like without ever being held accountable. E.g. in Germany the german government claims that they are a moderating force in the Council and software patents are being pushed on them. From other sources we know that the german representatives have been pushing for program claims, i.e. for the most radical form of software patentability. But very little of all this can be proven, because even members of parliament have no access to the negotiations of the Council. As far as written protocols of the Council sessions are accessible at all, the positions of the individual governments are anonymised. The working papers are moreover kept confidential. Thus national parliaments can not know about, let alone influence, legislative processes that are deeply affecting the interests, including basic freedoms, of their nation's citizens.

media at ffii org
Hartmut Pilch +49-89-18979927

More Contacts to be supplied upon request

The Foundation for a Free Information Infrastructure (FFII) is a non-profit association registered in Munich, which is dedicated to the spread of data processing literacy. FFII supports the development of public information goods based on copyright, free competition, open standards. More than 500 members, 1000 companies and 70000 supporters have entrusted the FFII to act as their voice in public policy questions in the area of exclusion rights (intellectual property) in data processing.
© 2005/01/06 (2004/01/29) Workgroup
english version 2019/02/04 by Hartmut PILCH