It’s a bright day for the rainbow of opponents who lobbied all summer against the excesses of the European software patenting directive. News.com reports that the European Parliament voted yesterday to pass the extremely unpopular software patent directive. The European Parliament could have thrown out the directive, but instead lumbered it with some amendments that may make it too difficult to implement in the member states. Though the result is messy, the EP’s vote has allowed common sense (and the conclusions of independent research) to prevail. It strikes a blow against oligopoly and tries to keep the way open for truly competitive innovation. (see some economists dismiss as daft the idea that software patenting creates economic growth.)
This directive should have been a relatively straightforward housekeeping exercise in making sure patents are enforced in all EU countries. But it opened another front in the war to extend intellectual property rights protection to every half-decent or half-baked idea any Dilbert can come up with.
Aside from the immediate analysis of the directive and its aftermath, there is some more food for thought; firstly, the benefit, if any, for the US in pressing for these extensions, and secondly, the contempt with which the Commission has treated the European Parliament.
The State Dept. exerted great pressure on the European Commission to extend throughout Europe protection for software patents and ‘business processes’, for example, objecting strenuously to an amendment that allows patented software to be used without permission or payment if the use is strictly for interoperability purposes. Larry Lessig has blogged before about the bizaare lengths to which some US agencies will go in opposing the open source movement. Lessig puts the USG’s support of software patenting in Europe down to the logic that it will help established innovators (predominantly US ones) and harm new innovators, creating a barrier to entry for the small guys. This seems a little simplistic, though I do think industry capture explains a lot about the official US position.
But surely it’s in the US’s broader and long term interests that open source thrives. Rising tide raises all boats, and all that. Yes, it’s harder to hug the benefits of open source software to one single company (no matter how big). And it’s damn tricky for the beancounters to add the positive externalities of all those busy coders at home and abroad / more and smoother interoperability / better functioning products and networks / more and better and cheaper software on the market etc. into a tidy equation of shareholder value. But still, isn’t anyone high level taking a long term strategic view of this? And doesn’t it jar just a little with the whole Washington consensus rhetoric of competition being slightly painful to begin with, but ultimately good for everyone?
On the European side, it’s not every day that legislation on an obscure subject like software patenting becomes the subject of a petition signed by 150,000 people. But an extraordinary range of people – from software companies themselves to SMEs to economists to scientists to Linux supporters, and all the way to the ordinary people who are simply fed up with the patenting of The Bleedin Obvious – worked right through the summer and succeeded in getting the usually docile European Parliament to jam a spanner in the Commission’s carefully contrived works.
And the reaction of the European Commission to this flexing of democratic muscle? “unacceptable” says Frits Bolkestein, head of DG Internal Market. From news.com:
On Tuesday, in a debate ahead of the vote, Commissioner Bolkestein also criticized the amendments, telling the Parliament that “the majority of those amendments will be unacceptable to the commission.” He said if the “unacceptable” amendments were passed, the commission could withdraw the directive entirely and seek to achieve patent harmonization through a renegotiation of the European Patent Convention.
“If I may be blunt…the process of renegotiation of the European Patent Convention would not require any contribution from this Parliament,” Bolkestein told the Parliament.
Or, in contemporary parlance, he flipped them.
I can’t quite decide between jaded and weary or some good, old-fashioned passionate outrage. In any case, EDRI-gram will keep us up to date on what happens next and whether the Commissioner does indeed decide to throw his toys out of the pram.
{ 4 comments }
Randolph Fritz 09.25.03 at 6:36 pm
Y’know, when unelected officials decide what is and is not property, it’s not the elected officials in charge.
Damien Smith 09.25.03 at 9:13 pm
Not that I agree with his position on this (I don’t), but you have to remember that Bolkestein has been stiffed by the European Parliament before, most importantly on the proposed European Takeover directive, which in three years was twice defeated in Strasbourg. Added to his inability, for example, to open up the French electricity market, Bolkestein’s job has to be one of the most frustrating on the Commission.
Reimer Behrends 09.26.03 at 12:03 am
One thing that is important to note here is that inventions that involve software have never been excluded from patentability in its entirety, but was always predicated how software was used within an invention.
The foundations for modern European patent law with regards to software were laid in 1976 with the “Dispositionsprogramm” decision of the German Federal Court (“Bundesgerichtshof” or BGH). This landmark decision established that in order for an invention to be patentable, it had to be of a technical nature: It had to make use of controllable forces of nature. Excluded from patentability were inventions that were simply instructions for the human mind, even if they were executed on a computer. The decision also provided a methodology for distinguishing between technical and non-technical matters. The decision (and those that followed) did not prohibit clearly technical inventions from being patented, simply because they had an integral software element.
The one remaining problem became where and how to draw the line between technical and non-technical inventions that involved software. While the BGH had laid down a pretty clear methodology, it became muddied up quite a bit subsequently due to the efforts by various entities to push the line more towards the realm of pure software. And the entire debate about the new patent directive was never about explicitly creating “software patents”, despite much bad reporting that said otherwise, but always about where and how to draw the line (which, of course, could be drawn so that it included all software de facto, even if not de iure).
In EU law, the technicality criterion was originally encoded in article 52 EPC, which prohibited the patenting of “computer programs … as such”, giving the executive organs and the courts discretionary power as to what constituted a computer program “as such”, and when the use of software was integral to an otherwise patentable invention and did not prevent patenting it. The problem with that is that the whole idea of giving somebody discretionary power doesn’t really work out if that somebody is doing the “if you give me your little finger, I’ll take the whole arm” routine.
If there is a bad guy in the whole drama, it is the European Patent Office (EPO). When I started researching the state of affairs of software patentability in the early 90s, the EPO had already started abusing the discretionary power given to it (and the same had happened, to a lesser extent, in the national courts, including the BGH). It all revolved around creative interpretations (read: “twisting”) of the technicality requirement. For instance, a drawing algorithm for geometric constructs could be considered technical when used to draw the layouts of electronic circuits, and was therefore considered patentable. Similarly, programs that made efficient use of screen real estate were also considered technical, because they optimized the use of the screen as a technical resource. As of now, getting something patented by the EPO is less a matter of it being technical but a matter of drafting it correctly (many national patent offices, on the other hand, tend to be more strict).
Much blame has also been put on JURI, the EP’s committee for law and the internal market, which drafted the proposal for the new directive. It should be noted — because the reporting on it has been atrociously bad — that even in its proposed form the directive did not explicitly allow software patents. It simply gave a very waffly version of the technicality criterion, which could be bent any way the EPO or the courts wanted to read it. This not only allowed the continued exploitation of loopholes, but also would not create any harmonization whatsoever, but rather the opposite. It was, simply put, extremely poorly drafted legislation (whether the poor drafting was due to malice or incompetence, I’ll leave for others to decide).
Enter the European Parliament. The EP has the following choices: Toss the directive out and allow the EPO to continue its abuse of existing law; pass the directive as proposed by JURI, and quietly allow things to continue (and possibly to worsen, once there is a Europe-wide patent), or to fix matters, one way or another. It chose the third option.
The amendments with which the directive has been “lumbered” are “we really mean it” legislation, sending a message to a part of the executive that abused discretionary power by explicitly enumerating all imaginable boundaries to that discretionary power. It’s not great, but the culprit here is the EPO, not the EP. Most of the amendments close one or more loopholes that have been exploited by the EPO. The exclusion of inventions that improve the efficiency of an existing computer puts a stop to the “better use of screen space is technical” approach, for example.
Neel Krishnaswami 09.26.03 at 3:35 am
How much money does the EPO take in from patent fees? That has been a major driver in the corruption of the US patenting process: about half of the USPTO’s budget comes from fees for patent reviews, which creates a nasty perverse incentive for it to accept junk patents.
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