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Some background on the EU Software Patents Directive

The debate surrounding Intellectual Property Rights (IPR) and the balance between the interests of society and those of the 'inventor' continues unabated. 'Inventor' in practice tends to mean large corporations and while they do not necessarily lead invention, the largest share of patents end up in their portfolios. Lobbying efforts by these corporations to ensure rules on IPR reflect their interests go back to the early 1990s when US business in particular played a major role shaping the IPR regime of the World Trade Organisation (the so-called TRIPs).

Software used to be covered by copyright, just like plant varieties used to be covered by plant breeders' rights. In both cases, industry decided it was not enough, despite the fact that the current software giants grew with copyrights. Patents, however, provide a stronger protection than copyrights or plant breeders rights, and therefore mean more profit. In the US, patents were granted on software, and living organisms from the 1980s. In Europe, software and related inventions are in principle not patentable under the European Patent Convention (art. 52 par. (2)(c) and (3)). Yet to date, more than 30,000 software-related patents have been granted by the European Patent Office (EPO).

In 2002, Internal Market Commissioner Bolkestein presented the first proposal for an EU directive on the 'patentability of computer-related inventions'. However, the European Parliament and many national parliaments, raised serious objections. There was concern about the objective of the directive and whether it merely harmonises current practice of granting patents in this field (its official intention) or acts to broaden the scope of what is patentable. Contrary to the claims of large software companies it is not clear that such patent rules stimulate innovation. Many smaller companies and software developers argue that the patents rules under discussion would actually cripple innovation.

Key to the debate on this directive is whether 'pure software' is going to be patentable. The directive text states it will not, as it is a requirement for being granted a patent that the invention has a 'technical contribution'. Many argue, however, that in practice such patents will be allowed. The European Patent Office has stated in some of its decisions that it is "easy to describe a computer programme in a 'technical' way".[01] This is a discussion that is hard to follow for outsiders. It is about the patentability of an operation (like a washing machine, or JPEG image compression) as well as the software that runs the operation. It is said by proponents of the proposed directive that only the combination of the two will be patentable and not the software itself. However, critics argue that patent lawyers acting on behalf of wealthy corporate patent holders could make it impossible for others to use the underlying software (or parts of it, as this is based on previous written coding). There is concern the definition of crucial terms like 'technical contribution' will be too loosely defined to exclude the threat of pure software patents. Furthermore, at a workshop held in London at the initiative of Lord Sainsbury, software developers and patent lawyers agreed that with this directive 'almost all software patents are likely to be granted'.[02]

It is notable that this is exactly what happened with the EU's biotech patents directive concluded in 1998. This directive also says clearly that 'plant varieties are not patentable'. However, another paragraph in the directive makes this exclusion meaningless, as it states that 'inventions applying to more than one plant variety are patentable'. So you cannot patent one variety, but you can patent several varieties at the same time. Furthermore, the plant variety, as the product of the invention, is also included in the patent.

Boosting the EU's international competitiveness, the Lisbon Agenda, is an argument used in support of the directive. However, the extent to which software patents really are an 'engine of growth and jobs' for the European economy is debatable. In fact, if patents harm smaller European software companies, this will have a negative impact on jobs and wealth in Europe. Furthermore, as the patent system is territorial, i.e. European companies can apply for patents in the US, and US (or Chinese, Indian) companies can apply for patents in Europe, the directive will not improve the competitiveness of European companies over others.


  1. Richard Stallman, Patent absurdity, The Guardian, Monday June 20, 2005.
  2. Ingrid Marson, EU seeks 'legally clever' patent definition, ZDNet UK, May 17, 2005.

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