New open doors for software patents in EU

By EDRi · May 21, 2008

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

Even though the European Parliament voted against the software patents in
Europe in 2005, new measures that could make software patents enforceable
are still being discussed with the US counterparts or within the framework
of the Community Patent.

The Foundation for a Free Information Infrastructure (FFII) reports
that a bilateral patent treaty could be agreed and signed with the United
States by the end of the year. The treaty could contain provisions on
software patents that will make them legal in both states.

Benjamin Henrion, a Brussels based patent policy specialist, explained for
FFII: “Talks in the Transatlantic Economic Council (TEC) are the current
push for software patents. The US want to eliminate the higher standards of
the European Patent Convention. The bilateral agenda is dictated by
multinationals gathered in the Transatlantic Economic Business Dialogue
(TABD). When you have a look who is in the Executive Board of the TABD, you
find not a single European SME in there.”

The substantive harmonisation of patent laws was one of the topics during
the Transatlantic Economic Council (TEC) on 13 May 2008 between high level
representatives from EU and US. TEC is a closed trade process and it is not
the first time free trade agreements are being used by the US counterparts
to promote their IP requirement – such as the TRIPS treaty.

Also it is worth noting that after the failure of the Substantive Patent Law
Treaty, the US has switched to TEC, a closed forum, to discuss the software
patents issues with EU.

FFII President, Alberto Barrionuevo, explains why the current approach is
wrong: “The European Union does not have a Community Patent, neither a
substantive patent law in its acquis, except the biotech directive. As long
as there is no substantive patent law in the EU, it is quite silly to
discuss about a bilateral patent treaty with the United States. Its like a
blind showing the way for a deaf. If the USA really wanted to fix their
patent practice they should first switch to first-to-file and join the
European Patent Convention.”

But this is not the only open door for software patents. The European
Community Patent, a patent draft law that would allow individuals and
companies to obtain a unitary patent throughout the European Union, is still
being discussed. Acording to a member representing FSFE, part of the CEA-PME
SME Federation, that participated in a Working breakfast on Community
Patent, a Director of the European Commission considered the possible
adoption of the Community Patent proposal as the final attempt. Right now
only Spain is openly against the project.

Apparently, most countries were now satisfied with the proposal to have
patents only in English, French, and German. Unofficial automated
translations would be provided in the other languages of the EU, even though
the EC representative acknowledged the general low quality of automated
translations but said that the EPO had now developed some amazing new
software for automated translations.

The FFII representative also highlighted the EC software patents policy:
“When talking about software patents, she constantly called them “wrongly
granted” patents or “disguised software patents”. This is consistent with
the European Commission’s position that software patents are not valid, but
“computer implemented inventions” are valid. In reality, the latter is just
a vague term which includes software patents. The European Commission’s use
of these funny terms and definitions makes meaningful dialogue difficult.”

McCreevy wants to legalise Software Patents via a US-EU patent treaty

Working breakfast on Community Patent (15.05.2008)

Transatlantic Economic Council: objectives for Spring 2008 meeting

EDRI-gram: ENDitorial – Regulating the Patent Industry (25.10.2006)