European Free Software / US patent issue

Arnoud Galactus Engelfriet galactus at
Thu Jan 16 19:20:01 UTC 2003

Benja Fallenstein wrote:
> One thing that has been brought up is that the patent is registered in 
> the US, not, as far as we know, the EU, and that software patents are 
> officially still-- hum, how to say this-- 'somewhat illegal' here. So, 

If there is a US patent, there may be a corresponding European
patent (strictly speaking, not a 'EU patent' - different treaty)
or aplication. You can go to and enter
the US patent number in the "number search" box. You'll then
be presented with any corresponding European patents or applications.
If there is a "B1" on that page, it's a patent. The "A1" and "A2"
are applications.

> However, I do not know enough about patent law to have a clue whether or 
> not US patents are enforcible in Europe 

No. Patents are strictly national affairs. You could get sued
in the USA for making the program available to US people even
if you're not in the USA yourself. I don't know how big that
risk is; it depends on how agressive the patent holder is
and how you offer the program for download. An explicit "Don't
download in the USA because of patent X" would be advisable.

> and whether the patent holder 
> could file for a EU patent in addition to the US patent or anything. 

He could, but he would have had to do so within a year of filing
the US application. If it's a US patent, it's now too late
to file a European application.

You may want to read more about patent law at the site in
my .sig. Regarding the illegality of software patents in
Europe, keep in mind current practice with the European
Patent Office, the national offices and many courts (even
at Supreme Court level) is to permit such claims. I don't
want to go into a debate whether this is right or not, but
this is what's happening right now.

If there is a European patent, and you distribute the work 
commercially, you may expose yourself to a lawsuit, and 
"software patents are illegal in Europe" will not be very 
useful as a defense.

Non-commercial activities, including distribution, cannot
be an infringement in Europe (unlike the USA). A banner ad
on your personal homepage is a definite no-no in such a
situation though. 
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself

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