Bonum Certa Men Certa

The European Patent Office is Breaking the Law Regarding Software Patents, German Parliament Finally Complains

Benoît Battistelli not above the law

Benoît BattistelliSummary: The EPO's sheer disregard for laws relating to patent scope gets the attention of very influential politicians in Europe, who explicitly ask the EPO to stop what it is doing

The situation with regards to software patents in the EU has been outrageous, with a German court legitimising controversial Linux-hostile software patents nearly half a decade ago and a British court doing something similar in a case involving Symbian (later fully acquired by Nokia). There are some news articles in French and in German which allude to a pushback from those above the courts. The patents boosters say that EPO "nominates a software #patent (an otherwise excluded matter) for its #EIA13 prizes show" and the response to it from more crass and rude bloggers (like IAM) is rather distasteful, characterising politicians that uphold the existing law as pirates (see "IP owners should be mindful of the lasting influence of Pirate politics in Germany"). Watchtroll, another exceptionally vocal patents maximalist, uses so-called software people to promote software patents, making fellow patent lawyers actually believe that programmers want such patents. This is unthinkable, but the lawyers' microcosm is an echo chamber of disinformation and it shows. Glyn Moody called the latest government intervention "some good news for change" but said that there are "dangers looming" based on his analysis which says about software patents:



European Patent Convention forbids them, and the European Parliament explicitly rejected them again in 2005. Fans of intellectual monopolies just keep coming back with new ways of getting around those bans, which means that the battle to stop them crippling the European software industry has to be fought again and again.

An interesting example of the growing confidence of the pro-software patent lobby is that the European Patent Office has even included a software patent in this year's nominees for the European Inventor Award...


Here is a good take on the news:

The German Parliament has held a first reading of [corrected] a joint motion against the growing trend of patent offices to grant patents on software programs. The resolution on “Secure Competition and Innovation in the software development,” obliges the German government to take steps to ensure that software is protected by copyright only and no additional patent protection is granted.


The FSFE's message (citing/quoting Karsten Gerloff) is almost identical:

The German Parliament, the Bundestag, has voted on a joint motion against software patents. The resolution urges the German government to take steps to limit the granting of patents on computer programs.

In the resolution, the Parliament says that patents on software restrict developers from exercising their copyright privileges, including the right to distribute their programs as Free Software. They promote the creation of monopolies in the software market, and hurt innovation and job creation. [Correction 2013-04-24: Parliament did not yet adopt the motion, but rather decided to pass it to the parliament committees for further consideration.]

"Software patents are harmful in every way, and are useless at promoting innovation", says Karsten Gerloff, President of the Free Software Foundation Europe. "We urge the German government to act on this resolution as soon as possible, and relieve software developers from the needless patent-related costs and risks under which they are currently suffering."


As we noted here before, there are two main loopholes for software patents in Europe, except trying to make them look like patents on physical devices (the characterisation/deception loophole). One trick is FRAND, a thicket-like trick, and another is the unitary patent, an assimilation instrument. Andy Updegrove addressed the issue of FRAND in the US the other day, alluding to Microsoft's patent war on Android.

"The European Patent Office is an executive organisation, it deals especially with patent applicants, as such, its view of the world may be biased. As an executive organisation, its interpretative powers are very limited. The European Patent Convention excludes computer programs, it is outside the EPO's power to change this."

--Ante Wessels



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