September 23, 2006 | Glyn Wintle

Software Patents - back like a bad smell

More than a year has passed since the European Parliament’s historic rejection of the Commission’s and Council’s software patent bill. Now this zombie legislation is shambling through parliament again: on October 11 or 12, the EP is set to vote in Brussels on two competing motions for a resolution on future European patent policy. Next week, internal market commissioner McCreevy will speak in the EP in Strasbourg and outline his patent policy plans, which have already come under fire.

The European Patent Litigation Agreement would impose an integrated judicial system and appeals process across Europe. It would do this by taking the power to rule on patents from national courts and putting it into the hands of a court made up of European Patent Office (EPO) members. This is really just a cunning way of making software patents enforceable across Europe. The law as it stands now states that software patents are illegal in Europe, but the EPO tends to ignore that and grant patents for software anyway. This has not been much of a problem as they are unenforceable — whenever someone tried to enforce these patents they had to do so in an particular national court. These courts would then say 'you cannot patent software' and rule against them.

Commissioner McCreevy proclaimed blissful ignorance about the consequences of the European Patent Litigation Agreement. In a series of six non-answers to Members of the European Parliament, the Commission failed to comment on cost, judicial independence, jurisprudence and treaty-related concerns. Meanwhile McCreevy keeps praising the virtues of said draft agreement.

A joint proposal of three groups — PES, Greens/EFA and GUE/NGL — calls for “balance between the interests of patent holders and the broader public interest in innovation and competitive markets”. The motion criticizes McCreevy’s preferred measure, the European Patent Litigation Agreement, for weakening EU democracy, compromising judicial independence, increasing litigation costs and “exposing SMEs [small and medium-sized enterprises] to greater risks”. The proposal also warns against the effect the European Patent Litigation Agreement would have on the scope of patentable subject-matter, and a decision of the European Patent Office to uphold a Microsoft software patent (on clipboard data formats) is mentioned as an example.

Comments (8)

  1. Dale B. Halling:
    May 31, 2009 at 01:03 AM

    The arguments against software patents have a fundamental flaw. As any electrical engineer knows, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. As a result, to be intellectually consistent those people against software patents also have to be against patents for electronic circuits. For more information on patents and innovation see

  2. Jeremy Henty:
    Oct 02, 2006 at 06:51 AM

    Glyn, thanks but that mailing list link you gave just hangs. I'm hunting around the site but I can't find anything that mentions mailing lists.

  3. rufus:
    Oct 03, 2006 at 07:46 PM

    As Glyn says the link is I note that that url appears to have been down for a day or so earlier this week but are now back up.

  4. The Open Rights Group : Blog Archive » Software Patents - the stench lingers:
    Oct 05, 2006 at 08:39 PM

    [...] The European Patent Litigation Agreement (blogged by us as Software Patents - back like a bad smell) remains on course to pass the European Parliament (EP) with a comfortable majority. Although the proposed legislation will not by itself bring SWP into our legal system, as it stands the legislation gives powers to the European Patent Court (EPC) which will lead to the enforcement of SWP in Britain and across the EU. Our best means to oppose this development is to write letters to our MEPs, informing them of the many reasons why we continue to reject SWPs, and asking them to support a number of amendments to the EPLA. [...]

  5. Higgy:
    Sep 30, 2006 at 11:24 AM

    Could we have a 'how you can help' somewhere in these posts as well as the other informational points?

    How can we help?

  6. Jeremy Henty:
    Sep 24, 2006 at 06:38 PM

    Anything useful Joe Q. Developer can do? Lobby our MEPs?

  7. Glyn:
    Sep 30, 2006 at 02:00 PM

    We recommend sending a letter to your local MEPs. For more detailed information on software patents and how to help the fight against them the ffii are the best people to talk to. The easiest thing to do is to join the ffii uk mailing list and send a quick email asking how can you help.

    Sorry about not replying earlier to Jeremy's post, I replied to his email address and forgot to add a copy of my reply here.

  8. Anonymous:
    Nov 06, 2009 at 12:03 PM

    This cost-benefit analysis should include our report's five recommendations for improved transparency around the recording of valid votes in e-counting systems. The problems around transparency observed by the ORG team can be solved, but it is important to ask: at what cost? There comes a time when electoral administrators need to ask themselves whether electronic counting really delivers value for money to ou