ConsFaq0405En

Questions and Misconceptions about Today's Decisions in the Council

Who are the parties of the Irish Presidency's "Compromise" ?

It is a compromise between administrators of a national patent offices, negotiated in secret by the "Working Party on Intellectual Property (Patents)" of the EU Council of Ministers, in short the "Council Patent Working Group", i.e. an anonymous group of national patent administrators. This group is identical with the group that sits on the Administrative Council of the European Patent Office and has been responsible for this Office's recent policies of granting broad and trivial patents on "computer-implemented" algorithms and business methods against the letter and spirit of the written law.

This paper is not a compromise between the Council and the Parliament.

Some Coreper officials claim that it is a "compromise between Microsoft and Linux", but it might be more appropriate to say that it is a "compromise between Microsoft and the European Patent Office". Companies like Microsoft in fact are regular negotiation partners of the Council Working Group, since they sit on the Standing Advisory Committee of the European Patent Office.

Who are the responsible ministers?

In general those into whose domain the national patent office falls. For some countries that is the ministry of justice, for others the ministry of trade and industry, for yet others the ministry of technology and innovation.

What role are the ministers playing in this ?

Deciding whether they want to

What does the Council Working Party's proposal say, in a nutshell?

"Software is not patentable, unless goobledygook", where upon closer scrutiny it turns out that condition "goobledygook" is always true, provided that it is interpreted by the European Patent Office's proprietary Patent Newspeak Parser -- on all other parsers "goobledygook" returns a value of "undefined" or an error exception.

The result is "legal security" for patent owners: i.e. "computer-implemented" algorithms and business methods such as Amazon One Click Shopping, which the European Patent Office has been granting in large numbers against the letter and spirit of the written law, are moreover without doubt patentable inventions in Europe.

For examples of patents legalised by the Council text, see

For details how condition "goobledygook" assures the above kind of results, see

They are trying hard to define the border between pure software and technical inventions, aren't they?

No.

The existing law (EPC) and the European Parliament made that delineation clear already, but the Council is trying to blur it.

See

Isn't this about clarifying the difference between pure software and software that runs industrial machinery?

No, this question arises from a deliberate attempt by the patent administrators to confuse the issues.

Software consists of abstract entities (numbers, symbols, calculation rules) only. Industrial processes (e.g. new ways of producing chemicals) can be patentable, regardless of whether that process is controlled by a computer. The process control software is not patentable (but copyrightable), regardless of whether it runs on a plain computer or on a computer with chemical processing equipment attached to it.

The Parliament's proposal reconfirms this principle of the European Patent Convention.

The patent administrators propose in Article 5(2) that the software per se must also be patentable (even when the innovation is not in the software but in the chemical process).

Moreover, in order to distinguish material processes from software, it is necessary to define the "technical invention" as a "solution to a problem by use of controllable forces of nature" or similar, as the Parliament did. The Council Working Party has proposed to delete all such definitions.

According to the Council working party, any software that makes something faster or more efficient has a "technical effect" and is thereby said to be "not software as such". In other words, any useful software is patentable, and the claim can be directed to the software as such (Art 5(2)).

Who is advocating the directive, who is opposing it?

The European Parliament has proposed an amended directive which is currently under discussion.

The Parliament's directive proposal is supported by FFII and by most software developpers and software companies, including large European software companies.

It is opposed by the the forces that govern the European Patent Office: national patent administrators (sitting on the EPO's administrative Council and in the EU Council's patent policy working group) and corporate patent lawyers (sitting on the EPO's Standing Advisory Committee and in the Intellectual Property Committees of large industry associations).

The patent lobby wants to kill this directive.

On what grounds are you alleging that the Council Working Group wants to kill the directive project?

The Patent working group in the council has rejected all limiting amendments from the European Parliament and refused to address the issues raised by the Parliament. They have added new amendments that worsen the Commission's original proposal and close all doors for possible compromise. E.g.

see

One day before the Parliament's vote, Commissioner Bolkestein threatened to withdraw the directive project and pursue "harmonisation" without the European Parliament.

The corporate patent lawyers speaking in the name of the "ICT industry" say in their statements that they would rather have no directive at all than one that limits patentability as proposed by the Parliament.

Why does the patent lobby want to kill this directive?

Because they do not want to discuss the problems that were raised by the European Parliament. Their power is based on consensus within their group. This would be endangered if discussions about policy choices were allowed to begin.

They thought they could get the Parliament to simply rubberstamp their proposal, so as to whitewash their illegal practise of granting software patents, but then they found that this didn't work.

What will the patent lobby do after they have killed the directive project?

They will try to rewrite Art 52 of the European Patent Convention.

Proposals for this have already been circulated by the UK Patent Office.

Can they really manage to secure a majority for deleting "programs for computers" from Art 52 EPC ?

Perhaps not. But they could try to dilute Art 52 EPC by throwing in some goobledygook from the current EPO guidelines, see the UKPO proposal.

And they might find it easier to secure the agreement of governments in the European Patent Organisation than to secure the agreement of the European Parliament.

If this fails, they can also go on granting software patents without a legal basis and hope to get national courts to adopt their goobledygook.

What role is Microsoft playing in the Irish Presidency's plans?

Microsoft has recently embarked on an aggressive patenting and patent licensing strategy and is involved in lobbying for the software patent directive.

http://swpat.ffii.org/players/microsoft/

Microsoft is also a sponsor of the Irish presidency and more closely connected to the Irish government than to some others in Europe.

http://swpat.ffii.org/players/ie/

However there is little doubt that the patent office administrators in the Council Patent Working Party are not driven by Microsoft lobbying but by their own community's ideology and interests, expressed in the holy writs of the European Patent Office. They would do the same thing even if Microsoft was against it. They welcome support from anyone, but they are also confident that they are in charge even without any such support. This is their turf (hereditary domain of political property), and the idea that anybody else could have a say in it is beyond their imagination. In fact they are used to ignore even the written instructions from their ministers.

Hosting sponsored by Netgate and Init Seven AG