Update of Software Patents Agenda

Olivier Berger oberger at april.org
Mon May 21 22:40:56 UTC 2001

karin kosina a écrit :
> On Fri, 18 May 2001 loic at gnu.org wrote:
> > Francois PELLEGRINI writes:
> >  > So they preferred to push forward the patenting of software in the
> >  > European patent directive, to which european nations will have to
> >  > comply and thus change their national laws to admit the patenting
> >  > of software.
> >
> >       I realize when reading this that I completly missed an
> > important point. European diretive are binding for members of European
> > Union countries -> countries of the European Union represent the majority
> > of countries signing the EPC -> European Commission can decide if
> > the exception can be removed from EPC.
> So, to state it in a few plain words: it is actually the European
> Commission who decides (through their directive, thus indirectly
> influencing the European Patent Convention). EU member states have to
> ratify EU directives, so they will have to remove the exception of
> software from being patentable from the EPC. Since most European
> countries are EU members, the majority will be in favor of such a change
> to the EPC.
> Is that correct so far or do I misunderstand anything?
> I just want to make sure that we get the facts straight. This whole
> issue is confusing and (probably deliberately?) obfuscated, and somebody
> (== us ;-)) ought to find out what's really going on.

As far as I understand european law, here is the situation as I see
it...but IANAL ;)

There are two parallel "efforts" towards software patentability :

- the EPO and its ruling assembly of states (most of which are members
of the EU, but not all... including small states with less political
strength, and which might be easier bought by patent lobbyists... see
Chyprus, Turky, etc... but no specialist in this matter, see for
yourself ;)

- the EU, with some parts of the European Commission.

Now, for the first one, if the states which belong the European
Convention on Patents rule that they go to software patents, they are
bound by this treaty (international law ?... strange matter...). I don't
know exactly what this means in practice...

Now, for the second one, if the European Commission makes a directive
(don't exactly know what role the parliament plays), each EU member
country has to transcript this directive in national law, which involves
having a national parliament debate and vote, as far as France is

So you can see that there are two evolving processes in parallel... one
depends on the states directly (ministers of justice / economy, mostly,
local Patent Offices, etc.) with no parliament control at all, and the
other one depending on the commission, with control of the European

It doesn't help fighting back and tends to divide our efforts :(

Some more things that I think I understood from the situation, but I may
be wrong. Guys fro Eurolinux would be best qualified to explain this...

The fact is that there is no concensus at the European Commission level,
as far as I know... 

And the situation is a bit like if states member of the EPC were
expecting Europe to make a decision so that they wouldn't need to make
the first step... They could, as usually, say... well, ou know, it's
Europe's fault...

Now... what we have to do ? ... Don't know much.

Hope this helped clarify a little bit.

Olivier BERGER - Secrétaire de l'association APRIL 
APRIL (http://www.april.org) - Vive python (http://www.python.org)
Pétition contre les brevets logiciels : http://petition.eurolinux.org

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