ON THE 24th SEPTEMBER THE EUROPEAN PARLIAMENT voted to approve a directive on the "patentability of computer-implemented inventions", or "software patents". The directive confirms the intent of Article 52 of the European Patent Convention (EPC): that programs for computers should be excluded from patentability, replacing the existing ad-hoc practice of the European Patent Office (EPO). During this drafting, the Association For Free Software has been extremely active in ensuring that the users and developers of Free Software are not damaged by any directive which could align European practice with that of the US or Japan, so that Europe continues to be well-placed as a centre of innovation within the Free Software world.
The AFFS has warned of the dangers of a bad patent law covering software since its inception. The treatment of software as "industrial technology" has many ramifications which many do not immediately understand, but which have been particularly highlighted by the US experience. Software patents open doors to patents on pure mathematics, business methods and other algorithm-based subjects.
Also, the AFFS has been worried by the amount of lobbying that has taken place on behalf of a small number of big businesses, attempting to paint software patents in a light that is business-friendly. We appreciate the thorough and professional efforts of the Foundation for a Free Information Infrastructure (FFII), whose tireless work has been invaluable in this area. The work of the FFII and others has raised the profile of this important issue, and we have been heartened to see that major business organisations, such as the CEA-PME - the European Confederation of Small and Medium-Sized Enterprises (SMEs), representing over 2 million firms - have also made their position known, and destroyed the myth that pure software patent laws are desired by business and required to continue innovation.
The directive, as it stands, does not contain many of the problems we had feared it might, and indeed is vastly improved on the original drafts we have seen earlier. This is due to the number of excellent amendments that were tabled, voted on and passed. In particular, the whole directive hangs on the definition of "technical contribution" - that patents on software should be limited to that which is technical. Many of these amendments define in much greater detail what is technical, rather than leaving it to meaningless phrases such as "that which goes beyond the normal interaction between computer and program". Pure software patents have been completely ruled out, and the amendments make clear that a technical contribution can not be found something which processes data, for example. This kind of tight definition is exactly what is required by a new directive, to ensure real legal clarity and certainty over what is allowed and what is not.
We are also extremely pleased to note two other limitations in particular. Firstly, a confirmation on the meaning of the term "industrial": as patents must be susceptible of industrial application, a sufficiently weak definition would have allowed this requirement to be easily bypassed with skillful wording. This is not the case - it is now clear that industry pertains to the automation of manufacture, and cannot be conflated (as many attempt to do) to any kind of business in general.
The second explicit limitation that we are pleased to see is that interoperation of software is again guaranteed by this directive. The possibility of companies using patents on file formats and other input/output presented a very real danger: that patents might be misused to reinforce a position of power within a market, preventing new competitors from entering and allowing existing competitors to be easily damaged. The right of software authors to create software that interoperates with other software has long been explictly uphead in European law, and the reconfirmation of this is extremely good news for authors and users alike.
It is too early to call this a victory against the concept of pure software patents though; there is still much work to do though we have won this small battle. This directive has a number of stages to pass: in particular, it will now pass to the Council of Ministers. There are many reasons why this directive is good for Free Software, so we must now raise our voices to support this directive in its passage, and not allow the years of work that have gone into the production of this directive to be wasted.
Also, there is still a little work remaining to do on the directive. We need to ensure that our politicians are aware of the small remaining problems and know what modifications we need - in particular, there is still a potential loophole which would allow algorithms to be patented. However, now should be a process of refinement rather than further change, and we should encourage our representatives to do all they can to bring this directive into law.
The Association for Free Software (AFFS) is a membership organisation which promotes Free Software to users, business and government. Our aims are to secure the legal status of Free Software within the UK and increase public understanding of Free Software among developers and users alike.
| Email: | frontdesk@affs.org.uk |
| Web: | http://www.affs.org.uk/ |
| Post: |
AFFS c/o Turo Technology LLP 79 Sir Lewis Street King's Lynn PE30 2AL |