Software Patents:
The Political Game

So what’s it going to be then, do we want software patents or not? Are they good for the economic development in Europe, or are they an obstacle?

Those who oppose software patents will of course answer this question with a "no", and make various arguments why this should be the case.

And those who are in favor of software patents will of course answer this question... nope! Surprise!

Because now we come to the next bizarre twist that makes it so difficult to get a grasp on the issue. It turns out that those who would like to see the current practice codified, so that software patents would become legal in Europe, hardly ever argue openly that software patents are good and that we should have them, but instead choose to hide behind the statement that "this is just to codify the existing EPO practice, and won't mean any changes".

As an example, let’s take the remarks made by MEP Arlene McCarthy in her opening statement when she introduced the proposal that would have introduced unlimited patentability for software to the European Parliament on September 23, 2003:

Mr President, the Commission proposal on the patentability of computer-implemented inventions before Parliament is not, as some opponents of the directive have suggested, a new phenomenon. Neither does it argue for the patenting of software, nor for extending the patentability and scope of protection in this area.


In the USA, and increasingly in Japan, patents have unfortunately been granted for what is essentially pure software. An EU directive, by setting limits to patentability in this area, could stop the drift in Europe towards a US-liberal style of patenting software as such, and indeed of patenting pure business methods.

One oft-quoted example of such a bad patent is Amazon's 'one-click' shopping method. Clearly this technology is not new, nor is it unique, and patenting of software business methods such as this is not good for innovation and competition. It is unfortunate that the EPO has granted it a patent: this is an example of bad EPO practice.

If you read this quotation without knowing who is who, would you then guess that McCarthy is one of the leading proponents of software patents in Europe? Myself, I have been a programmer for 25 years, which means that I am strongly opposed to software patents, but if I thought that McCarthy was telling the truth when she made these remarks, I would have no objections at all.

But unfortunately she isn’t, and this is what the European Parliament had realized as well when it had to vote on the proposal. Although more or less all the members who spoke in the debate agreed with her general remarks and stated objectives, it was not until Parliament had made a large number of amendments to the proposal, that it found itself able to pass the directive.

Many have described the effect of these amendments as "fundamentally reversing" the effects of the directive.

If the directive had passed in its original form, without all the amendments that the parliament made, this would have been very bad indeed, and would have created a situation in Europe that was just as bad as the one in America. The original directive was filled with barn door sized loopholes that would have turned Article 52 into a meaningless formality that any patent lawyer could circumvent by adding a couple of standard phrases to the patent claims.

The directive as it stands now, before it gets to the next stage of modifications by the Council of Ministers, partially reintroduces the fundamental EPC concept of “technical invention” and hopefully excludes patents on programs for computers. Inventions where software is a part of some technical device remain patentable. Examples where software might be a part of such inventions are anti-lock braking systems (that require computer control of its operation), or an innovative computer controlled washing machine or vacuum cleaner.

This is fine, as long as the line between genuine inventions that happen to contain software, and software as such, is kept well defined in watertight language.

But this is what the controversy has come to focus on: well defined and watertight.

As an example of how the patent lobby has tried to sneak software patents in the back door, without having to present their arguments in an open debate, we can look at an analysis of Article 2 in the directive.

Some of the key elements in drawing the line industrial products like washing machines containing software, which should be patentable, and features realized by ordinary software, like Amazon’s one-click patent, which McCarthy claims would not be patentable, are certain provisions about “industrial” application and “technical” effects. Provisions like these can indeed be found in the original proposal, and will quite likely cause an unsuspecting reader to think that all is well.

Is it? Well, actually not, because by conveniently "forgetting" to properly define the terms “industry” and “technical”, the original proposal leaves the door wide open for patent lawyers to claim that the one-click patent is applicable to the “book-selling industry”, and that it has the “technical effect” of reducing the number of mouse clicks when you order a book.

Think this sounds paranoid? You have obviously never been involved in any patent litigation.

Think it was merely an accidental omission? You are probably not aware of how vigorously the patent lobby opposed the insertion of the definitions as they stand today. Read about it here if you are interested.

The relevant part of Article 2 in the amended and adopted directive now reads:

2c. "technical field" means an industrial application domain requiring the use of controllable forces of nature to achieve predictable results. "Technical" means "belonging to a technical field". The use of forces of nature to control physical effects beyond the digital representation of information belongs to a technical domain. The production, handling, processing, distribution and presentation of information do not belong to a technical field, even when technical devices are employed for such purposes.

2d. "industry" in the sense of patent law means "automated production of material goods";

To a patent examiner, this means that the one-click patent can be rejected outright, since the single click does not control the forces of nature except to represent information, and, furthermore, the “book-selling industry” does not deal with the automated production of material goods.

If McCarthy had really wanted to avoid the one-click patent, this is how to do it.

She voted against.


There are a number of very good arguments why software patents are bad for Europe in general and the software industry in particular --- for example, I would recommend this speech by a venture capitalist involved with the software industry --- but on the other hand: if the proponents of software patents are not even prepared to present their arguments in an open debate, but prefer to try to sneak them in by omitting fundamental definitions in the directive text, isn’t that in itself a rather clear indication of the merits of the case?



Christian Engström, January 2004
christian.engstrom (at)
The text is public domain.



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