[Fsfe-ie] Patents back on EU Agenda

teresahackett at eircom.net teresahackett at eircom.net
Tue Jan 17 17:09:11 CET 2006


Anti-software patent campaigner warns that the community patent project 
might give software patents a stronger legal basis in Europe

Brussels (16 January 2006) - The Financial Times reports that EU internal
market commissioner Charlie McCreevy will today announce "one final effort"
to establish an EU-wide community patent:

McCreevy played a key role in the EU's recent push for software patents,
which ended on July 6, 2005, when the European Parliament rejected a
bitterly contested proposal by 648-32 votes. Anti-software patent campaigner
Florian Mueller, who founded the NoSoftwarePatents.com Web site, issued a
first warning in October that the EU's community patent project might
legalize software patents "by the back door". Mueller now views the
Commission's announcement of consultations with industry lobbyists as "a
definitive indication that our camp has to take action again".

The current proposal for an EU community patent regulation, on which the
Council has been unable to reach agreement since 2000, contains a clause
that the European Patent Office should "apply to the Community patent the
case law which it has developed". Anti-software patent campaigners have long
criticized the EPO for its case law. The EPO allows software to be patented
under the pretext of a "technical contribution", which usually boils down to
faster computation times, more economic storage of data, optimized network
traffic, or novel ways to use input/output devices. Unless the
aforementioned clause on case law were to be replaced with a "waterproof"
exclusion of software from the scope of patentability, the judges at the
European Court of Justice or a new Community Patent Court would be
"extremely likely to follow the EPO's law-bending approach and declare
US-style software patents legal in the EU", Mueller fears.

He believes that it is "imperative for our movement to influence the new
debate on the community patent on a timely basis, or else we would find it
hard, if not impossible, to stop the avalanche". In his opinion, it is "a
steep challenge" to ensure that a community patent law would simultaneously
address the issue of the EPO's patent granting practice, "because many
politicians believe that the community patent is an important measure from a
competitiveness point of view, and won't like the all-or-nothing notion of
having to solve two huge problems at one fell swoop". But, he adds,
"defining what is patentable would be needed to really make Europe more

Presently, the European patents that the EPO grants are effectively bundles
of many national patents. The examination process is centralized at the EPO,
but most of the total cost of a European patent is due to the need to
provide multiple translations of the patent document, which some consider a
competitive disadvantage versus the US patent system. A community patent
would bring down the number of language versions required to a few or just
one (English). Lower costs would likely result in an increased number of
patent applications, and there are different opinions as to whether that
would foster innovation or have the opposite effect.

The community patent appears to be part of Microsoft's strategy for giving
software patents a stronger legal basis in Europe. In an interview with the
EU Reporter issue dated November 28, 2005, Microsoft EMEA chairman Patrick
de Smedt said his company is "keen to have software patents on the European
agenda", and the community patent project is mentioned in the same article
(downloadable as PDF document from

NOTE: Florian Mueller founded the NoSoftwarePatents.com campaign in 2004
with the support of three corporate sponsors (1&1, Red Hat, MySQL AB), and
managed it until March of 2005. He then gave his website to the Foundation
for a Free Information Infrastructure (FFII), the leading European pressure
group that opposes the patentability of computer programs.

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