May 24, 2006 12:46 PM PDT

Europe: No patents for software

Software patent campaigners have reacted with surprise to an apparent change in the European Commission's stance on those patents.

The Commission said last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation and that the European Patent Office will be bound by this law.

"The EPO would...apply and be bound by a new unitary Community law with respect to Community patents," the Commission said in a statement. "The draft Community Patent regulation confirms in its Article 28.1(a) that patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC, may be invalidated in a relevant court proceeding."

This statement appears to contradict one made by the EC last year, when it said that the EPO would continue to grant software patents that make a technical contribution, despite the European Parliament's decision to reject the software patent directive. That directive would have widened the extent to which software could be patented.

The Foundation for a Free Information Infrastructure, which has doggedly campaigned against software patents in Europe, was confused at the change of tune.

"I'm stunned," Pieter Hintjens, the president of the FFII, said Wednesday. "Does the Commission now accept that the EPC (European Patent Convention) rules do actually rule? Or have I misunderstood something?"

In the past, campaigners have expressed concerns that the Community Patent legislation would be used by the Commission to legalize software patents.

The EC statement last week was made in response to a question posed by a Polish member of the European Parliament, Adam Gierek, in April. Gierek asked whether the Community Patent legislation would ratify the EPO's current practice of granting software patents.

"I am concerned about European Patent Office practices, which are undermining the social acceptability of the patent system, with patents being granted for solutions that are not patentable under the current law," Gierek said in his question. "Does the Commission still stand by the position set out in...the proposal for a Council regulation on the Community patent, namely that the case law which the EPO developed for the European patent will apply to the Community patent?"

Even if the Community Patent legislation does allow software patents to be invalidated in court, that would not be enough, Hintjens said. The patent office should offer an independent appeal process, rather than forcing companies to pursue a costly legal case at the European Court of Justice, he said.

"The proposed Community Patents will be granted by the EPO--a nonaccountable, non-Community organization--with no independent appeal possible. The Commission says this is not a problem, since the (European Court of Justice) can invalidate the granted patents in infringement cases," Hintjens said.

"That is, however, only true if it comes to civil litigation, which is often too expensive for (smaller companies), forcing them to pay for a license. Therefore, software patents not yet taken to court will impose an enormous burden on the industry," he added.

Gierek's question and the EC's full answer can be viewed on the European Parliament's Web site.

Ingrid Marson of ZDNet UK reported from London.

See more CNET content tagged:
software patent, commission, patent, legislation, Europe

56 comments

Join the conversation!
Add your comment
hurrah!!
software patents = massive mistake
Posted by df561 (94 comments )
Reply Link Flag
Isn't It Ironic....
... that the European Community which has not been noted for and; also, has no significant contribution to the IT industry as we know it today is now having the Commission saying "last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation, and that the European Patent Office will be bound by this law."! The question is - where will the "incentives" for innovative information technologies within the EU come from; and, are they in the EU be "depending" on the innovations from companies in other socio-economic bloc such as the Americas (Microsoft....) for their social and economic advancement!
Posted by Captain_Spock (894 comments )
Reply Link Flag
No Need
There is no need for incentives for patents in software, the same as there is no need for patents in other forms of art. The incentives are in and of themselves. The IT industry thrived for decades, grew, and prospered, without software patents. It wasn't until recently in the US that they were allowed, and the allowance of software patents has gotten us into a massive, MASSIVE mess.

Software patents are ridiculous. This isn't the pharmaceutical industry we're talking about here. The only thing I can hope for is that the US follows suit... though I don't see this happening.
Posted by duerra (76 comments )
Link Flag
IT in Europe
Don't forget that the WWW was invented in Europe.
Posted by rmiecznik (224 comments )
Link Flag
That is the most erroneous/ignornat statement I have ever seen!
You said:
"the European Community which has not been noted for and; also, has no significant contribution to the IT industry as we know it ....."

Are you for real!

What do you call the HTML? It was discovered by Tim. Berners-Lee of Cern in Switzerland. Imagine if he had been granted a software patent on HTML!!

Or how about MySQL? Which powers most the DBs on the Internet.

Or how about Linux which was created by Linus Torvlads of Finland.
etc. etc. etc.

If you take the above 3 elements alone out of the Internet, you would not have the Web/Internet.
Posted by Dean_Ansari (61 comments )
Link Flag
innovation...
The biggest problem of the EU is that we've don't have the same
amount of startups. Innovation comes from startups, not from
big companies (like Microsoft).

The reason the EU is lacking in this regard is mainly because of
the insane amount of red tape and bureaucratic non-sense that
is related to starting a business.

Add to this a culture of 'finding a job for life' and you see the
problem bright as day.
Posted by gmlk (1 comment )
Link Flag
Hello Americans
I sometimes wonder where you Americans came from
during the old days.
Perhaps you have a short memory.
But seriously, the problem with software patents is that most people think that a software patent has something to do with inventing something.
Invent, and patent it, is fair and logical. However, software patents have nothing to do with inventing anything.
It servs many big companies very well because it is a nice way to block competition.
Works like old (!!!) russian justice where you have to prove (and pay) you are innocent.
And lets have some mathematics. Microsoft wants to
fill 3000 patent applications a year (to start with).
Which means 58 per week, 8 per day.
Wow, what a company, 8 new fantastic inventions a day, monday to sunday.
The cost of fighting software "patents" is the great, innovation in software patents.

Visicalc the "innovator" of the "Spreadsheet" tried to patent it but was informed it is not possible (that was during the honest years of patents).
PS. Google for "spreadsheet" and enyoy more "russian" methods of writing history.
Posted by lgmbackman (35 comments )
Reply Link Flag
way off here...
....you are way off Mr. Firstly there are other companies that file more then Microsoft. IBM (mostly hardware), Mistuhita (Electronics, hope I spelled it right) so what's so suprising if MS with over 60,000 in every country and dozens of products file 8 patents a day. EU pretty much wants to kill US softare industry, but I worry too much about that, EU is pretty much out of the game anyway.
Posted by FutureGuy (742 comments )
Link Flag
..you say "americans" like we all have the same mindset..
over at digg we are all praising europe for this..

<a class="jive-link-external" href="http://digg.com/technology/Europe:_No_patents_for_software" target="_newWindow">http://digg.com/technology/Europe:_No_patents_for_software</a>
Posted by assman (1101 comments )
Link Flag
..you say "americans" like we all have the same mindset..
over at digg we are all praising europe for this..

<a class="jive-link-external" href="http://digg.com/technology/Europe:_No_patents_for_software" target="_newWindow">http://digg.com/technology/Europe:_No_patents_for_software</a>
Posted by assman (1101 comments )
Link Flag
I agree...
Software patents have gone way overboard. When you have investors purchasing companies that never made a red cent, just so they can pursue litigation against other companies, there's a big problem.

It's a shame that there is a lot of dishonesty out there with software patents. At this point, I'm glad to see the EU taking a stand against them.

Charles Whealton

Chuck Whealton @ pleasedon'tspam.com
Posted by chuck_whealton (521 comments )
Link Flag
Real democracy in Europe results in ruling against Software Patents
The reason that European commission is able to take this position regarding software patents is because they have real democracy in Europe. It is because the European governments 1st work for the benefit of their citizens and then Big corporations/media, whereas in US the government 1st works for the benefit of Big (wall street backed) corporation and at the distant 2nd place for it's citizens. After all 99% of software patents in the US are held by Big corporations (Microsoft, IBM, Google, Yahoo, etc.) and 1% by small guys. And even more to the point, what do Microsoft, IBM, Google, Yahoo, etc care about
spending 10s of Mills in legal fees to fight patent litigation or pay penalties when they loose when they have Billions in the bank when such a patent litigation would kill a small business even before they could defend it.

To see the point that they have real democracy in Europe whereas same does not exist in US, consider the fact the people in USA still don't even have Universal Health care!
No European government would last 6 months in power if it was not providing its citizen
with such a basic service. And keep in mind that the European's pay the same or lower taxes
than American's when you factor in the property taxes and other non income or non sales taxes that
people pay in US whereas they don't in Europe.

But EU needs to take further actions against it's economy/culture being controlled by few giant
US companies, which are backed by US government for purpose of world domination, such as
Microsoft, Oracle, Google, Yahoo, Hollywood, etc. we need to actively foster the use &#38; growth
of European based information sources/products, or at least Open based information sources/products, that is why we should back and use the following information sources/products:

For the DNS root server: ORSN.org
For Search engine: Anoox.com
For Database: MySQL.com
For Desktop/Server OS: Linux

Any suggestions for a non-US based source for online payment processing?
I mean one to replace Visa/Mc/Amex. I don't think so. But would love to be surprised.
Posted by free_people (66 comments )
Reply Link Flag
Very smart, very cool
I can see some fast software progress resulting from this. Could it mean Europe will become the World's leaders in software?
Posted by Stan Johnson (322 comments )
Reply Link Flag
HELLO EUROPE: WAKE UP PLEASE!
... The INDIAN, as well as the CHINESE IT "Workers" are eating your breakfasts, lunches and dinners today and heaven knows why some in the least expected places are so desirous in accelerating the pressing of your own delete button in the IT Industry. The rationale behind the accelerated pace of development of the Googles, the Microsofts and the Amazon.coms of the Americas was because "American Laws" state that Software Patents for Methods of Doing Business is "A Second Class Citizen No More":

Re: "For many years, anyone seeking to patent the use of a computer for functions that were previously performed manually had double trouble if the invention related to a way of doing business. First, the Patent and Trademark Office decided that mathematical algorithms were not a statutory category of subject matter that could be protected by patent. Second, business methods were held to be unpatentable. These two objections have been eroded over the years.

Recently, software inventions involving algorithms have been eligible for United States patents as long as tangible results are produced. Also, in the mid-1980s, Merrill Lynch won a court ruling that it was entitled to have a patent on its Cash Management System, which involved various types of processing of financial data by computer.

In 1998, the U.S. Court of Appeals for the Federal Circuit in the State Street case destroyed the last remnant of the method of doing business objection to obtaining a patent. It ruled that no legal basis exists for such an exception to patentability and that if an invention otherwise meets the standards for patentability, there is no legitimate basis for denying the issuance of a patent. This ruling was made for a software invention that used computerized processing to establish a system for pooling of assets of mutual funds.

The State Street decision, combined with the rapid growth of e-commerce, has led to a large number of patent filings on software inventions related to a method of doing business. Amazon.com, for example, patented its 1-click system, which enhances the speed and efficiency with which a customer can place an order.

As a result of the patenting changes, people creating new, computerized business systems must consider patent protection. The fact that a computer is performing accounting or financial processing which previously had been performed manually does not preclude patentability if the standards of patentability (i.e., usefulness, novelty, and unobviousness) are met. Simply computerizing an operation may not result in a patentable invention, however. One must look at the differences between the com-puterized system and the prior manual approach, as well as the value added through the use of the computerized system. One also should consider the types of patent protection available, e.g., methods, apparatus, and products....."

<a class="jive-link-external" href="http://www.tms.org/pubs/journals/JOM/matters/matters-0012.html" target="_newWindow">http://www.tms.org/pubs/journals/JOM/matters/matters-0012.html</a>

Therefore, in the rapid growth of the e-commerce race in the fast-paced IT world in which we now live (like it is during the olympics) either countries lead, follow or drop out of the race altogether! Is it the latter that the EU wishes to do?
Posted by Captain_Spock (894 comments )
Reply Link Flag
Great! Another hole we'll have to bail Europe out of.....
The Europeans have been noted (in American circles at least) for making many rather incredible decisions.

Like giving up Poland for peace.

It's the result of a different mindset, I believe. In America, we believe in leading the pack and capitalism. In Europe it is more a mindset of following the pack and socialism.

One side (American) values independence and the right to compete and be rewarded for excelling in your field. The other (Europe) values being cared for (socialism) and does not seem to be very concerned with being first in anything except soccer/football.

Admitedly, I have a tainted view toward American values of independence and capitalism - as that is how I was raised. I see the value in them by watching other countries attain goals that I deem failures.

For instance....free healthcare. They do that in Canada. Many of my Canadian friends and I have spoken about it at great length. And, from what they tell me, the level of care stinks.

They tell me that they must wait for months for operations by mediocre doctors, and that any Candains that can afford to come to the US to get thier health care because the state of state-run health care is quite poor.

It is well known that most (not all) great innovations in healthcare (like open heart surgery, artificial hearts, ground-breaking cancer research, etc.) come from or are supported financially by America. Why?

Capitalism. It ensures that you are rewarded for your hard work and efforts in a meaningful way. And, thats what patents protect.

Without software patents.....well, I don't need to guess about it when we can all take a look for ourselves.

If you have a few minutes, drop by SourceForge.net and take a look at the hundreds of thousands of open source projects (that are not patentable by the nature of the GPL). Look at how many are abandoned. Look at how many are successful at supporting business.

It is hard to use software in a business that you want to be profitable when the software is free but unsupported. Unsupported software raises the cost of doing business because you have to support all of the software yourself or pay high outsourcing fees to have it fixed.

Why is most open source software unsupported? Because GPL licensing means that you have no edge over anyone else. You have to share your code with everyone else. This kills any chance to use software as a tool to enhance your services over that of any competitor. (It kills capitalism.)

With very few notable exceptions, open source software companies do not attain any degree of financial success at all, let alone the great success of companies like Microsoft or Intuit or Google.

Take Firefox. Widely distributed, open source and free....but the company is a financial failure - depending on donations to survive. Same for Netscape and Sun (OpenOffice) isn't really burining up the stock market either.

Let Europe disallow software patents. (Russia, and many former Soviet bloc countries steal over 80% of the software they use anyway).

They will see that American software companies stop doing any meaningful business with them. And, they will destroy an industry.

But, why not? They almost destroyed the world - TWICE!
Posted by Jim Hubbard (326 comments )
Reply Link Flag
Blah blah blah
First off, really rich being preached to by an American. Isn't it amazing how the wonderful americans came to everyone's aid in WW2. Yeah, after selling weapons to both sides, and making a bundle from it. England faced Germany and the Soviet Union on it's own for most of the war. Great help America.

Capitalism is also amazing. It means that people who do the most for their fellow countrymen (eg police, firefighters and other low paying service related jobs) will not be able to afford the same level as care that a bloodthirsty, greedy, backstabbing capitalist will. What's wrong with the Canadian system? As Jay Pinkerton puts it, "It's like everyone pays into this big lottery, and if you get hit by a car, you win!" And I don't think that it's as bad as you say. I know people in Canada too.

If opensource is good, then it makes money. If it sucks (as many little programs on sourceforge will) then they won't. Red Hat sells opensource and is a financially secure company because of it. Look at their earnings last year. There are other successful opensource models, just do your homework.

Now, to the actual issue of software patents. What if someone patents Insertion sort, or any other type of sorting routine, suddenly, you have to pay royaltys for the most mundane of patents. Capitalism obviously has its place, but it it sheer stupidity to think that it is the be all and end all of all goodness in the world. There will come a time when we will outgrow it. Even Rome fell, America will fall in the future too, that is a guarantee
Posted by joshuasmythe (32 comments )
Link Flag
America software companies will lose EU market
Heh, you do not understood one important thing. Yes, Europeans make increbible decisions. They do not make sensless decisions.
They just wanna kick out Microsoft's monopoly.
Who knows, may be they will grow his own monopoly which will be able to compete with Billy.
Posted by _Spy_ (1 comment )
Link Flag
Your comments are uninformed
You claim that software patents are required for "supported software" that customers want.

Guess what? For most of the industry's history, software patents were not allowed in the US. Patents for software are a recent introduction, yet Microsoft, Oracle, etc., thrived with their "supported software" without patent protection.

You also confuse open-source software with unpatented software; open-source has only been a small fraction of unpatented software. Again, the history of the American software industry is proprietary, closed-source software that has done very well without patent protection. So when you "don't need to guess" about a world "without software patents," look to America's recent past for a better guide than some open-source, volunteer iniatives.

Quite possibly, the US software industry has competed so well because the historical lack of 20-year patent monopolies has forced them to innovate so much. But whatever the reason, American success wasn't because of non-existent patents.

American companies will keep selling software to Europeans, without patents, as they have profitably done for many years.

p.s., your comments about a *non-profit*, Firefox, as "a finanicial failure, are bizarre.
Posted by LBellows (1 comment )
Link Flag
Whatever
<i>For instance....free healthcare. They do that in Canada. Many of my Canadian friends and I have spoken about it at great length. And, from what they tell me, the level of care stinks.
</i>

if i break a leg i dont go bankrupt and become a drain on society

shove that up your anti socialist ass

our doctors arent mediocre... they simply are overwhelmed (often with having to do unimportant work)
Posted by volterwd (466 comments )
Link Flag
GPL
I think you seriously miss the point of GPL software and the support issue, you can certainly pay for support, just like you do with Microsoft for example, or you can get free support, just by asking a few questions! You definitely have a much safer software by the very nature of it being an open environment, little holes are quickly found and fixed, unlike, for instance, Microsoft sitting of security problems for months, or even attacking the companies that find the security problems for violating DRM restrictions!! How does GPL licensing kill capitalism, other than keeping a business from hiding some little insidious piece of code that you..the user, don't know about or what it does? You use Firefox as an example of a financial failure without even knowing what the company sees as financial success, or what their goals are. They must be a pretty good success, they have driven Microsoft to copy what they and Opera have used for several years!
Posted by dland51 (91 comments )
Link Flag
Re: Great! Another hole we'll have to bail Europe out of.....
First and formost I apologise to the majority of people for such a forced yet concise statement -- which ultimately resolves to 'Jim you are a wanker!'
A declaration such as "Great! Another hole we'll have to bail Europe out of" is exactly why the majority of the world hates the soul you harbor; that is without mentioning - the Capitalistic point of veiw that was so "taintedly" shoved into your gullable; un-questionable mind; which made a great many of your countrymen die in Vietnam and the present gulf situation. If you believe you fight for freedom then i say no-more. "Like giving up Poland for peace -- It's the result of a different mindset" Thank **** it is Mr Hubbard....
I will sleep tonight..
Posted by littlescrubs (2 comments )
Link Flag
Free software for european.
It's very weird about the decison, most possible reason is no real software industry in Europe. But we see many innovation software are come from Europe, if anybody can copy copy copy in Europe, the industry may be destory.
Every software products should stop to sell in Europe to protect their products.
European can begin to copy software.

Great idea of EU, now european can have free software forever.
Posted by X-C3PO (126 comments )
Reply Link Flag
What?
What does free software have to do with patents?

The US software industry not only thrived for decades without software patents, its most innovation was done during that time. When patents entered, innovation exited.
Posted by qwerty75 (1164 comments )
Link Flag
"I, Republican, blindly follow my govt..."
"So, I suppose you want to discuss how Churchill knew about the impending Japanese attack on Pearl Harbor - yet chose NOT to warn America so that it would have no choice to enter WWII?"

You mean just how the american government knew about the attack but chose not to prevent it in an attempt to get the excuse and public support they needed to enter in a war they really *wanted* to enter: "There's nothing better to kickstart the economy than some warfare, and in the process we can try out some of our latest weapons."

It's people like yourself that in a few years from now will argue that Bush's current Irak war was justified because Saddam *really* had WMD. Heck, I'm probably underestimating you: I'm sure you can pull that trick off right now.....
Posted by AlphaC. (1 comment )
Reply Link Flag
RE: Joshuasmythe
"We were losing merchant ships and personnel aiding both countries under a program called "lend/lease" which we knew would never be repaid or returned. The US is not perfect, nor is any other country, but we, as a people, generally try to do all we can to help"

Hahah please I'm gonna wet myself!!
do you know why you dont accept money for the "lend/lease" program?

No of course you dont otherwise you wouldent have made such a riddiculous statement. It's because it then allows you to rape the said country of their natural recources instead of a cash settlement (the intended idea) it is a buisness investment and nothing more, do not kid yourself into believing your goverment does charity. It sells somebody a gunl; urges them to pick it up - then crys blue murder because someone has a gun in their hands.

Searching for weapons of mass destruction?
I can only recall off hand in my mind one country that dropped the atomic bomb a couple of times.

you want to know who has the weapons of mass destruction? I suggest the US goverment takes a look at it's invoices - as it probably sold them in the first place.
Posted by littlescrubs (2 comments )
Reply Link Flag
 

Join the conversation

Add your comment

The posting of advertisements, profanity, or personal attacks is prohibited. Click here to review our Terms of Use.

What's Hot

Discussions

Shared

RSS Feeds

Add headlines from CNET News to your homepage or feedreader.