Question: So, is software patentable or not...

Bernhard Kaindl bernhard.kaindl at
Mon Sep 29 09:46:17 UTC 2003

On Mon, 29 Sep 2003, edA-qa mort-ora-y wrote:

> Yes, it is a loaded question, but what is the general consensus towards
> the final wording of the patent law and whether software is effectively
> disqualified.
> I also noted that some of the wording in the law may effectively make
> algorithms also not patentable -- such as the MP3 algorithm.  Is this
> way off base, or has Franhaufer just lost their source of income?

No, they have lost nothing, nothing is finally decided yet. We are at
a point in an EU law making process which is called co-decision procedure
which could go on for quite some time and involve quite some steps before
a final decision is reached.

The most exact descripton I've read so far is the Co-decision Guide of
the Council:

It's found on the codecision info/status page of the council:

Which I linked from a greater info page on the law procedure:
-> It also contains shorter explanations but they are less correct.

Right now, we've just passed the 1st reading in the European parliament
in this process. It was an important step but nothing which is not
reversible by the council.

Even if a text like the current one would be put into law, Fraunhofer
would not loose it's source of income because a) it should have other
sources of income as well and b) it currently depends on the interpretation
of the European Patent Convention by the national courts if somebody
has to pay a license fee. If they would interpret it in a way which
says that an algorithm is not patentable, they would not have got
much money from patent licenses in this country. And all thus EU
stuff does also not directly affect the money which they get from
US and Japanese patents.

I think the council has a very strange role now:

The group in the council prepares it's position on this law is some
intellectual property group which is composed from delegations from
all the national patent offices.

This group already had the law proposal in it's hands, the FFII has
a page which details what it did:

So it looks to me that this "EU-PTO" group is even more dangerous
with regard to holes on this directive because they obvoiusly(logically)
want to give all the power to the patent offices, as it can be
interpreted from the changes described at the FFII page above.

It can be guessed that this group will propose some changes which
introduce some holes into the proposal, probably more or less along
the lines what JURI voted to have ammended in June, which would
be really bad, but what else can we expect from a closed council
group of patent office delegations?

I think we must point out that what they will propose will very
likely be a very biased statement towards unlimited patentability
(hidden) or at least give the patent offices the power to interpret
the law like some patent offices, at least the EPO, has done so far.

To me this looks like to ask the people which are known to change
their interpretation of the current legal framework(the EPC) how
they like and make more money from it(the EPO makes good revenue!)
by granting more patents it if they are happy with a new law which
restricts their ability to interpret it like they did and loose much

I hope the position of the Council, at least in it's second reading,
will not be determined by this group(but ATM, it seems to be) or
a text which reduces the income of the patent offices will not be

This is purely wishful thinking (*dreaming again....*) but maybe
with good work on the national press and national parliaments, the
national ministers which should have the final say in the council
would have their own opinion...


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