“This is not a banana union”

A short introduction to software patents

Introduction

What are patents?

Why patents?

What makes software patents special?

History of software patents (in the US and Europe)

The process to legislate SwPat in the EU

What next?

Conclusion

contents:

What are patents

In exchange to disclosure of an invention, the inventor receives a temporary monopoly on it

Using a patent you can legally prevent someone else to produce, sell or use your invention

The duration of a patent is 20 years

You can also give out licenses to the patent

Why have patents?

The reason for having patent law is to promote the advancement of society.

If anyone could just “copy” the invention (e.g. a better mousetrap), the inventor may not be able to profit from it. This might be a reason not to pursue the invention

Patent protection can give an inventor better means to gain from his/her invention

Having the invention available under a monopoly would be better than not having the invention at all.

Why is software special?

Software can be considered a from of expression, comparable to mathematics or literature

Software is already protected by copyright

Software development very much builds on the ideas of others

Why could software be considered patentable?

Software (other than mathematics, literature) makes devices do something

Examples where software partly replaces hardware implementations that are patentable

Many industrially produced products rely on (embedded) software

Objections against software patents

Software patents create a legal minefield

This is especially bad for SME's

This way, innovation is obstructed, not promoted

Threat to Free Software projects

History of software patents in the US

Until the seventies, USPTO did not grant software patents granted

1981: Diamond vs. Diehr

1990s: Federal Circuit attempts to clarify software patentability

1996: USPTO adopts Final Computer Related Examination Guidelines

In practice, software can be patented

History of Software patents in EU

The EPC of 1973 excludes patents on computer software

1986: EPO starts to grant software patents presented in the guise of process claims

1998: EPO authorises program claims

2000: Attempt to delete all the exclusions in the EPC

2002: proposal for a Directive on “Computer implemented inventions”

Democracy?

2002: European Commission proposes directive, Council of Ministers reaches agreement on text

EU Parliament tables and accepts a great number of amendments, posing real limits to the scope of software patentability

Council of Ministers draws up a revision of the directive, almost all essential amendments ignored

Council pushes this proposal text through

The Luxembourg president of the Council of Ministers: “This is not a Banana union”

What next

With the proposal agreed on by Council of Ministers, “the ball is in the court of the EU Parliament”

The second reading by the EU Parliament started yesterday (april 15)

Second reading to be completed in 3 months

absolute majority required for adopting amendments or rejecting the proposal

What to do?

Read up on the subject

Contact your MEP

take part in discussions

Publicity

More information

Foundation for Free Information Interchange: www.ffii.org

www.nosoftwarepatents.com

Conclusion

2005-04-16T11:56:59