The German Parliament urges the government to limit software patents

By EDRi · June 19, 2013

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Deutsch: [Deutscher Bundestag drängt auf Begrenzung von Software-Patenten |]

On 7 June 2013, the German Parliament unanimously decided upon a joint
motion to limit software patents urging the government to take measures
in this sense. In the German MPs’ opinion, supported by several SME
associations, software should be covered exclusively by copyright, and
the rights of the copyright holders should not be devalued by third
parties’ software patents.

The joint motion was introduced in the Parliament in April and after a
first hearing, the legal committee held an external expert meeting on
13 May where most of the participants, including representatives from
the industry, SME associations and other experts and groups such as the
Free Software Foundation Europe (FSFE), supported the motion.

According to the motion, the only exception where patents should be
allowed are computer programs which replace a mechanical or
electromagnetic component. The Parliament also made clear that the
actions of the Government related to patents must never interfere with
the legality of distributing Free Software.

The Parliament acknowledges that, in actual practice, especially that of
the European Patent Office (EPO) — software-related patents have been
granted in the guise of “technical procedure” or “technical equipment”
that would be necessary to use the respective software.
“The number of software – related patents granted by the EPO alone has
been estimated in the high five – digit range. This situation leads to
substantial legal uncertainty for software developers: the abstract
nature of the patent claims means that a software – related patent
encompasses all of the separate embodiments of the protected problem
solution in concrete computer programs. Computer programs which contain
protected problem solutions may not be utilised commercially without the
consent of the patent holder.

The software developers affected by this situation lose de facto the
exploitation rights intended under copyright laws to the computer
programs they have themselves created and are exposed to unpredictable
cost and liability risks in the event of commercial utilisation. In
addition, patent-protected components of software solutions are
fundamentally irreconcilable with the terms and conditions of licences
for largely open source software. There are justified fears that the
general economic consequences of this situation will be a tendency to
monopolisation in the software sector and the correspondingly negative
consequences for innovation dynamics and the labour market,” says the
text of the motion.

At an expert meeting in the Parliament on 13 May 2013, the industry
associations BIKT and BITMi proposed changes to German copyright and
patent law. One proposal was to add a “protective shield” clause in the
German copyright law, to introduce a blanket ban on the enforcement of
patent claims related to software. Another proposal was to provide
clauses in the German patent law ensuring that the effect of patent
claims would not extend to works protected independently by copyright.

The organisations present at the expert meeting also warned against
giving all the responsibility to the EU which, in their opinion, has
been incapable of providing legal certainty for software developers
until now. “Germany now has to implement this decision in law, to send a
strong signal towards Brussels,” says Johannes Sommer of BIKT, one of
the associations.

“Since the EU has decided to give away its power to make rules on the
unitary patent, this step towards limiting patents on software is all
the more important”, stated Matthias Kirschner, FSFE’s coordinator for

German Parliament tells government to strictly limit patents on software

Motion Proposed by the Parliamentary Groups of the CDU/CSU, SPD, FDP and
BÜNDNIS 90/DIE GRÜNEN Securing Competition and Innovation Dynamics in
the Software Sector (16.04.2013)

Software patents