Caliu Campaign Against Software Patents


Last modification 05/02/2002

The orginal text is in Catalan (this is a translation to English by Matt Bonner)

Proinnova has created a free translation/adaptation in Spanish of the March 2002 version.


Index

Summary

Background

Desperate Measures

Arguments Against Software Patents

Myths in Favor of Software Patents

Dangers of the Proposed Directive

Opposition to the Directive

CALIU's Interest in the Subject: Software Patents Threaten Free Software

URGENT NEED TO ACT

For More Information

References

Background

The European Patent Convention [3], including 24 European countries, created the European Patent Office[4] (EPO) and specified in aticle 52, point 2 that computer software cannot be patented (it is covered by copyright). Nevertheless, the European Patent Office has granted more than 30,000 software patents, in part because of pressure from USA and Japan and in part because approving a patent brings sizeable fees, while rejecting a patent brings nothing.

The European Commission has not only consented that the EPO ignore the law, but has tried without success to modify the European Patent Convention to cover for the excesses of this office.  All serious economic studies [6] and practically all software engineers recommend against software patents, which only benefit patent offices, patent attorneys and maybe some multinationals in the USA and Japan.  Not even the economic study [5] the Commission requested from a company in the patent business (and as such scarcely impartial) could justify software patents.  The study writes "any move to stregthen IP protection in the software industry cannot claim to rest on solid economic evidence."

The Commission launched a public survey on the subject, perhaps expecting the support of patent functionaries and intermediaries, but the software sector also participated and those opposing software patents exceeded 90%.  The analysis [8] requested contained a poor summary and ignored many of the opinions received [7].  The summary even manages to declare the less than 10% favoring software patents an "economic majority."

Instead of understanding that it is mistaken in insisting in the patentability of software and taking measures to advise the European Patent Office to respect its boundaries, the Commission still wanted to augment its authority by awarding itself control of the new Community Patent [9] (5 countries, including Spain, opposed this measure because of linguistic issues, but it finally was agreed in March 2003.)

Recently, to complete the aggravation, the EPO, seeing the ineffectiveness of democratic control over its management, published new guidelines [28] that, excusing itself in inconsistent sophistries, encouraged its examiners to approve software patents.

Desperate Measures

In mid-February, an European Directive proposal was circulated that was leaked to Eurolinux, an association of companies and organizations opposed to software patents.  Eurolinux denounced the proposal--to be presented by the Commission imminently--as having been written by the Business Software Alliance, an association of American software multinationals such as Microsoft and Adobe.

Eurolinux warned of the danger [10] that large multinationals controlled the European policies via the Directorate General for the Internal Market.  It is known that software patents present grave legal risks for free software such as GNU/Linux, the principal competitor to Microsoft, and has an important European presence.

Indeed, on February 20th, 2002, the Directorate General for the Internal Market published a "Directive of the Parliament and of the Council on the patentability of computer-implemented inventions (COM(2002) 92 2002/0047) [1], a press release, and a list of questions and answers.  The Directive was the same as the one leaked earlier, except for very few minor changes.

Unlimited Patentability while pretending no changes

The Directive proposed to extend patentability to software, forcing EU member countries to ignore arcticle 52.2 of the European Patent Convention, based on reinterpretative wordplay [11].  What it does is codify European Patent Office jurisprudence, drifted away from the Convention, making it law.  As the Commission has not been able to modify the European Patent Convention, they want to introduce contradictory legislation to make the prevailing confusion more difficult to control, and thus cover for the European Patent Office.  In this way, the Commission complicates any initiative for democratic control of the Office and eliminates incentives for any appeal against granted patents, because it would be clear that whatever the office says, in accord with the Convention or not, ends up as law.Furthermore, these contradictions distance the rulings from users, and will require even more intervention from patent professionals to determine what are patentable and unpatentable wordings for the same concepts. 

The proposal starts from mistaken suppositions, justifies itself with generalized dogma about patents that does not apply to software, and ignores the opinion of experts and those interested in the field.  It first declares software as a technical field.  Then it imposes the condition for patentability that the invention make a "technical contribution."  But the software itself would be a technical contribution, and as such this condition does not exclude anything that could be done with a computer.  What is more, the Directive contains much redundancy in the measures for patenting logical works (it is written to resist partial changes) [30].

The Directive expands the field of patentability, but does not provide any clear, strict definition of where patentability ends.  Business methods, games, mathematical algorithms and any other concept that could be expressed in terms of software could be construed to show new applications of computing, hence of technology, and therefore make "technical contributions" and be patentable.

The proposal tries to imply that it leaves unpatentable areas, that software programs "as such" could not be patented, and interprets software "as such" as merely stored and transmitted programs and abstract algorithms.  However, these same programs, when used, become processes and can be patented (or the computer becomes a programmed device that can be patented). This limitation is not such, because it permits patenting all uses of abstract algorithms, and any program that works. The original meaning of the European Patent Convention was merely explicative, it excluded all software from patentability, but clarified that when an invention was patentable, the mere inclusion of computer software did not render it unpatentable (such as in industrial control systems).  The patentability had to be judged without considering the software, and it would be the system as a whole that was patented, no its software.  This was the interpretation made in a German court [13] that defended the technicity criterion [29] (that is, that the means used in an invention or the wording of the applicationg are not what determine an invention, but what the invention provides that is a novel use of controlled forces of nature for a defined end).

The Commission is Contradictory, Misinformative and Deceptive

At the same time the Commission published the proposal, it distributed a press release to explain the content [14] and a list of questions and answers [15].  These materials contradicted [31] the Directive itself and reality to some extend.

The Commission says the Directive is necessary in order to harmonize the legislation of member states.  But it only refers to the differing judicial interpretations (some follow the written law, others, European Patent Office decisions, but in fact, there are divergences within single countries).  The law governing patentability is very consistent throughout the European Union.  In fact, all 15 member states (plus most candidate members and 5 non-member states) follow one European Patent Convention.  A law cannot be made more uniform than this. Arguably, other details could be harmonized (such as fiscal patent excemptions), but not what the Directive covers.  To add a directive contradicting the only applicable convention can only help to confuse the issue.  The reason for the divergent judicial interpretations is the irregular practice of the EPO, and can be corrected by reforming or replacing the office, not the law. The only law that could be useful is an reinforcement of the EPC.

It says the Directive will be stricter than the USA practice.  In fact, instead, the Directive does not impose more limits on software patents than purely rethorical ones.  In fact, there is a manual [70] (that the author has not read, it's exoensive) on how to patent software at the EPO.

The Commission says the Directive does not change the law, but it voids of meaning the European Patent Convention point 52.2.c.  In fact, it confuses the practice of the EPO with the law when it says that changing the law to say what the administration already does is not changing anything.  In reality, the change validates 30,000 patents improperly granted (primarily to American and Japanese multinationals) that so far were potentially useless in courts of law.  The function of the legislature is not to echo the practice of the administration but to decide which behavior benefits society.

The Commission says the  Directive will clarify, but offers no examples of non-patentable software.  It goes so far, when discussing the controversial "one click shopping" patent granted to Amazon.com, to say that patenting this would be "highly unlikely," but that it does not want to rule absolutely on this matter because the EPO is studying it.   Thus the commission renounces to any legislative control over the EPO, and demonstrates that the new criteria are so ambiguous that not even those who propose them are capable of applying the rules to an example they themselves have chosen.  The goal, then, of clarifying the rules remains debatable, and the only effect of the Directive is obstructing the solution of the current muddle.

The Commission says the Directive does not apply to abstract algorithms, but it does apply to any application thereof, no matter how general, because patenting the algorithm in software jargon (that would be considered a patentable technique from now on) would suffice to make a "technical contribution" and therefore be patentable.

The Commission says that the European Patent Office does good work, but examples of trivial and dangerous patents abound [12].  Not only this, but the problems turn out to be structural, with the judicial and executive branches in the same organization, with economic incentives biased to approve rather than reject patents [16].  Because of this, the Dutch Parliament requested that the EPO's charter not expand until the current problems are resolved [17].

The Commission says that the consultation justifies the Directive proposal, when in reality the biased study commissioned by the Commission [5] shows that more than 90% of the responses reject the patentability of software, and a more accurate analysis [7] revealed that the only ones interested in the Directive are the European Patent Office, the Commission and some multinacionals in the USA or Japan that could more easily eliminate small-business competitors and reinforce their monopolies.

The Commission says that patents foster innovation, when all serious studies [18] demonstrate that in software, the contrary is true.

Arguments Against Software Patents

There are many arguments against applying patents to software.  Although the burden of justifying a change in legislation should fall on those who propose it, and justifying an act violating the law on those who commit it, this document presents several reasons for maintaining the traditional interpretation of the European Patent Convention:

Obstructing Innovation

Software programming is very incremental.  Any application contains many small patterns and practices that if they were patented would impose an intolerable burden on development and commercialization of software, due to the cost of verifying that each detail of the software is not patented. In fact, standards organizations such as the Internet Engineering Task Force (IETF[38]) or the Institute for Electrical and Electronical Engineering (IEEE[37]) use patent policies that do not oblige companies participating in standards work to declare related patents up front, because they believe that the work would be too costly, and companies would not participate.  If companies find it too costly to search their own patent portfolios, searching everyone else's patents for possible infringements might be impossible.

Because software is mostly applied mathematics, a basic technique may have diverse applications, and with only a few patents in that area, whole branches of computer science would be barred from use.  For the great oligopolists, this does not pose a problem, because they frequently cross-license patents to avoid endless lawsuits (defensive patent accumulation).  Small and medium businesses could hardly afford a few patents, but would be practically prohibited from enforcing them for fear of countersuits from large corporations claiming infringement of some other patent.  No person can re-invent all of computer science and still manage a business.

Compensation Disproportional to the Investment

Software patents monopolize ideas. To obtain them, one only has to present a description of what one desires to achieve and how to achieve it.  In disciplines that work in the physical domain (machinery, chemistry, pharmacy...) the invention discovery phase requires considerable investment in experiments and essays to verify a solution really is viable, because in reality, what is done is to explore a small part of the working of the universe and investigate whether it can bring benefits.  In software, however, the range of possibilities for a computer are known beforehand, and all that is needed to formulate a problem and plan the solution is reason logically about what is already known.  The substantial investment comes afterward, in succeeding making everything function correctly, in combining all the small parts and controlling their interactions--namely in writing the program.  The fact that consultants frequently offer a preliminar analysisi on a project before signing the contract, for example, demonstrates this, even if the eventual development price can be very high.  The substantial portion of the investment in software innovation remains protected by copyright, and does not coincide with compensation that could be provided by patents.

Support for Monopolies

Software is a sector with strong natural tendency toward monopolization.  Network effects (the fact that a program becomes more useful if more people use it), interoperability and compatibility problems, the low cost of massive reproduction of software, the difficulty of inspecting software distributed without the source code, the learning curve and the rapid evolution of the market--all these contribute to the creation of monopolies that are harmful to consumers.  Software patents would cause yet more monopolies--the 20 year life of the patent is a practical eternity in software.

Patenting Information is contradictory

Software programs could be considered mechanisms, but they remain descriptions of processes, and as such, information.  An automotive engineer may patent a motor, but she would not patent the schematics of the motor as they are only information, regardless of their level of detail.  The patent does not impose any restriction on the drawings (to the contrary, the objective of the patent system is publication and dissemination of industrial knowledge that would remain secret otherwise).  Patents impose limits only on the commercialization of motors as described by the drawings. Software programs, though, are their own schematics, and the idea of patenting them contradicts the essence of patents.  The fact that software is information changes the market's -- and society's -- behavior.  To apply patents to software is to extrapolate a system designed for the manufactured goods industry to the information distribution business, or worse, to a community of people (with computers and networks) that interchange knowledge more effectively than ever, an information society.

Software Does Not Need Incentives for Innovation

Innovation, which in a manufacturing industry required patent incentives, in the software industry is an almost inevitable consequence of the market.  In manufacturing, companies could compete on many fronts: via raw material supplies, production capacity, distribution logistics...  Companies did not have to innovate, they could simply construct more factories and make sure that they were the only ones who could fulfill large orders.  Or they could place warehouses in strategic locations to reduce costs.  None of this results in new knowledge or better products for society.  The patent system offered an incentive to spend large sums on research to obtain new technologies.

In software, companies cannot compete on any front other than innovation.  Production capacity and distribution are practically infinite for all participants because the systems of storage (disks) and distribution (networks) are abundant and cheap.  And the supply of raw materials--software, libraries, functions, protocols, formats and knowledge--are likewise abundant, at least in the absence of patents, which would create an artificial scarcity of raw materials.  WordPerfect authors cannot hope to compete with Microsoft Office simply because they are capable of manufacturing more CD-ROMs with their software, nor because they distribute software to customers more quickly.  To compete, WordPerfect must offer features that Microsoft Office does not offer, or offer better implementations of similar features.  The only case in which a software company can allow itself not to innovate is when it enjoys a monopoly--such as the one created by patents.

The phenomenon of free software, and other software distributed with the source code (needed to understand its function), demonstrates that not only is there sufficient incentive to innovate without patents, but that there are even enough incentives to encourage divulging innovations.  Therefore, the patent system is unnecessary.  Perhaps during the industrial revolution it was helpful to have a library of patents that organized technical knowledge.  But software engineers don't use patent databases, which are cryptic, difficult to search and read, too slow and clumsy to follow the rate of software innovation, and of little practical value.  Free software does not only reveal its innovations and permit others to reproduce them (like patents), but it offers the revelation and the innovation ready to be studied, tested and used, or modified to adapt it to a related problem,  without having to be rebuilt from scratch.  Hence, programmers reuse, innovate and divulge their innovations, forgoing the patent system.

True, innovation in software is typically incremental, combinatorial and difficult to value.  After all, all software is just zeros and ones, but today computers help design medicines, win chess tournaments, and interconnect in an immense Alexandrian virtual library, and only a few years ago did none of these things.  History shows that computers and software have been more productive the more open they were.  So maybe more important than innovation for software is the ability to use freely the innovations, the symbiosis and the combinatorial explosion of creativity brought by access to the massive quantities of networked information and a universal machine to operate on it: the computer.

Patenting Information Violates Freedom of Expression

The fact that software is information impinges on basic rights.  Software patents involve restrictions on freedom of expression that patents in other areas do not.  If patents have always been a trade of freedom of commerce for new knowledge, we may now find ourselves in the situation that we pay for knowledge already likely to be found with freedom of commerce and expression.  After all, even if a professor or writer can continue explaining patented software including the source code (because patents only limit commercializing an idea, not researching or teaching it) there is no way to separate these functions from commercial use, because whoever receives the source code can use it for what the patent prohibits.  For example, an author who wants to explain LZW compression techniques might want to include a CD-ROM with example source code for the reader to read and test.  But if the author sells such a book, he could be accused of commercializing patented software because it permits the reader to do what the patent limits, aside from studying the program.  An author writing about car engines does not face this publication restriction, because for as many drawings, schematics and simulations as he includes, nobody would accuse him of selling patented engines.

In the same way, to express oneself in an information society, digital information must be transmitted.  And if we allow patenting communication protocols and file formats (such as ASF[32] or MPEG[2] video,  MP3[33] audio, or the two most used image formats on the web, GIF[35] and JPEG[34]) we will be giving to private companies the possibility of controlling our means of expression, we will be selling them the right to censor [36] or place tolls on communication [2].

Consumers Affected, not Just Producers

Finally, another imbalance in the manufacturing patent model applied to software is illustrated by the fact that the restrictions that traditional patents impose on the commercialization of products affects only a small part of the population, those that have a factory capable of making the patented product. However, the profit obtained (new products) benefits a large part of the population (consumers).  In software, the "manufacture" of patented software is available to anyone with a computer.  Creating software from scratch requires knowledge (although nothing overly exotic) and time, but the machinery for "manufacturing" patented software is available to the larger part of the population, and as such, the restriction imposed affects as many people as benefit from the innovations.

Discrimination by Business Model and Weakening of Authors' Rights

Furthermore, software patents discriminate against some business models.  For example, the authors of shareware (software that can be redistributed for trial use and for which the user must pay only when deciding to keep it), gratis software (distributed freely,; business comes from training, maintenance, customization, service, etc), and Free Software (discussed below) cannot know how many copies of their software exist in the world, and as such, could not pay per-seat licenses, nor do they make enough money to afford unlimited use licenses.  Not only these software authors, but all authors, regardless of business model (if any), will find themselves prevented from selling or distributing software created independently, and hence their author rights will be eroded and legal uncertainty will be imposed on them from the impossibility of knowing if any algorithms in their software are under patent.

Heavier Workload for a Patent System with Quality Problems

All these topics are fundamental, but independent of the quality of the patents and the correctness of the patent office.  They're issues that arise from the incompatibility of the nature of software and the patent system. By adding patent offices that are scarcely motivated to evaluate patent applications correctly (as patent examiners claim [19]), the situation becomes even more serious, and leads to situations such as the patenting of trivial techniques [12], for example, the use of the well-known binary operator XOR (exclusive or) to redraw an image on the screen [20]), patents exaggeratedly broad (like the  British Telecom patent for web links [21]), or patents on fundamental interoperability standards.  No indicator suggests that the quality of software patents will improve [27] (certainly, the Commission has not tried), and it seems counterproductive to dedicate software experts that could be innovating to examine the patents of software engineers in industry that, instead of innovating, are writing patents and worrying about infringements on other patents.

Numerous studies [22] discuss, in more sophisticated and rigorous methods, the inconveniences of software patents.  Hopefully this summary has explained the basics.  No study to date has shown economic benefit in extending patents to software.

Myths Supporting Software Patents

As much as we have looked, we have not found real arguments in favor of software patents that lead us to think that being in favor or against depended on initial principles or values. All the texts we have found favoring software patents limit themselves to repeating a few unjustified bits of dogma.  By repeating this mantra, people wind up believing it, or at least becoming accustomed to using it as an excuse to avoid thinking.

Patents Promote Innovation

False. Perhaps in mechanical engineering this is true (one would have to ask mechanical engineers).  But in computer science innovating is the only way to compete, and patents prevent competition, thus discouraging innovation. As we have already discussed, the only way to survive in the software business without innovation is enjoying a monopoly, like the one a patent ensures.

Patents allow small businesses to compete against large ones

False. To the contrary, patents are a cost (mean: 29800 EUR/European patent [71]) and a distraction (between 2 and 6 years in procedure).  Each software program infringes many patents, and large organizations have vast patent portfolios.  Thus, smaller businesses cannot use patents against larger ones, because they cannot risk a counter-suit.  Larger companies cross-license patents to avoid mutual lawsuits, so they do not notice the harmful effects of patents [72]). But smaller businesses, with small patent portfolios, have no power to negotiate cross-license agreements.  So odds are against them.  In Catalonia, more than 2/3 of the workers in IT and communication companies of more than 10 employees work in companies with fewer than 200 employees [73]. That means that the effect of software patents on smaller businesses should be a political priority.  Larger corporations do not provide the majority of jobs.

Patents help young companies to obtain venture capital

False (or it should be). We have already seen that patents are a cost and distraction for small businesses.  Hence, their investors should not value patents positively because new companies will not be able to use them effectively.  Ideas in computer science are not expensive to obtain (because the functionality of a computer corresponds exactly with computer science theory).  To have patented ideas in computer science does not assure success [74], the ideas must be brought to market successfully to bring returns.  Therefore, it is doubtful that investors should assign value to such ethereal capital (in other fields, such as pharmaceuticals, where obtaining a patent requires experiments and assays, a company has more reason to believe the idea will work). Even so, valuing ideas does not require monopoly status, or seals from the European Patent Office, who clearly states that a patent is not a sign of technical excellence.

After the .com crisis, which attracted risk capital exaggeratedly based in possibilities and business models that were more promising than demonstrated, if  investors of venture capital remain who wish to risk money, they will be well advised to be sure they understand the business in which they invest, instead of hoping that an idealized entity like the Patents Office does their due dilligence.  Valuing a new company by the patents it has obtained, without considering the patents held by the rest of the market, is dreaming of things that will probably never be, and all society will be better off when venture capital learns it. Some investors already knwo and are asking not to legalise software patents[89]

Justifying software patents because they serve to fool venture capital and obtain money for companies which otherwise would not have it is dishonest and unsustainable in the mid- to long term.

Software is a technology like any other, indistinguishable from hardware. As such, patenting software cannot be prohibited

False. CALIU do not demand excluding software exactly from patentability.  It is quite true that all logical creations are, in some way, equivalent, and it is complicated to decide whether a spreadsheet, a Postscript document, an electrical circuit designed in VHDL or a web shop is software or something else.  But it does not matter.  None of these things should be patentable.  The question is whether the patent describes anything novel in the material world, not whether it is implemented in software or hardware.  And the material world is easily separable from the world of ideas.  Nothing that does not require experimentation (observation in the physical world) deserves a patent.

There are many software patent applications, ergo the sector wants software to be patentable

False. If the mayor sells guns, everyone will possibly want to buy a gun, even if they believe that the mayor should not sell them.  Patents function in a manner similar to a cold war, where all sides accumulate weapons to dissuade their adversaries from attacking with theirs.  This does not imply that any country would want such weapons if no other country had them.

The reality is that although the Commission set up a consultation that was hardly neutral, and commissioned a study on the responses from patent consultants, they could not hide that more than 90% of the 1400 responses were contrary to software patents.  There is a petition requesting that software patents not be legalized, with more than 140,000 signatures, and nothing of this size in favor.

Copyright is too feeble a protection for software because it doesn't prohibit imitation

False. No reason exists for prohibiting independent intellectual creation. Free competition finds its foundation in the possibility for different producers to offer similar products from which consumers choose.  

Copyright can prohibit that anyone use someone else's work, because the expensive part of software development lies in the program source (see arguments above). The fact that things like functionality, user interfaces, algorithms, data structures, or other intangibles do not fall under a property law is not necessarily bad. Air, sunlight and feelings cannot be appropriated and neither should they be. In fact, creating property rights for things, especially those not reduced by sharing, must be justified, and patents for logical creations have no justification.

The people that uses this argument, usually look for increased safety for themselves, they would like to hold patents to control their competitors, which they consider unjust, and they hardly ever stop to think about the effects on their own business of the patents held by their competitors. Citizens might feel safer walking the streets with bazookas, but allowing the streets to fill with bazooka armed people is not the best way to increase public security.

International agreements (TRIPS) obligate Europe to accept unlimited patentability

Some juridical analyses deny it [75]. The World Trade Organization (WTO) TRIPS agreement requires that "patents shall be available for any inventions in all field of technology, provided they are capable [...] of industrial application". But this does not imply that software has to be considered a field of technology, nor that it must be considered an invention, nor that it has industrial application. Signing states must define this, and no reason exists to to make everything patentable.

In any case, if an international agreement forced Europe to do things contrary to public interest, the natural reaction  would be to use the weight of the European Union to modify the agreement (or get out of it).

Even though software patents remain problematic, if the USA has them, Europe also must have them to compete

False. This presupposes that having software patents is a competitive advantage, but in reality they are a cost and a distraction. Europeans want to innovate, not litigate.  Europeans should allow Americans to entertain themselves with lawsuits if that makes them happy (but it does not [80], and one can hope that one day they change their system, so there is no need to copy them). This myth also presupposes that patents discriminate by nationality, and that is not so. From the Paris convention at the end of the 19th century, foreign citizens should be treated like nationals, with respect to obtaining patents. As patents are granted to specífic states, European businesses can patent and do patent software in the USA if they are thinking about selling it there and they believe it useful. In Europe, neither Europeans nor Americans should be able to patent. This is not discriminatory: each market has its rules, but all participants play with the same rules. In fact, the absence of software patents would be favorable to Europe, because we would only have to worry about patents when selling in the USA. Smaller businesses can grow in an environment more favorable to Europe and, when they are ready to have a presence in the USA, think about patenting. Besides, the majority of software patents already granted in Europe belong to US or Japanese companies [76], so that European developers would be disadvantaged if they legalized them.

Dangers of the Proposed Directive

The directive would legalize the 30,000 software patents that the European Patent Office has granted during this time, and would encourage it to grant more. This would have serious consequences:

Innovation and competition in computer science would deteriorate greatly. Once a monopolist obtains a patent portfolio it has very few incentives to innovate more, and can raise prices arbitrarily. Those harmed are the users, which in the case of software, is practically all of society, businesses, organizations and individuals.

Personal freedoms would be damaged by the control with patents on computer mediated means of expression, and for the difficulty of developing creative activities in the computer environment.

The standards that ensure compatibility across products would be monopolized.

The availability of information on the internet would be subject to tolls for producers and consumers alike (for exemple 0,02 EUR / hour for the MPEG 4 digital vídeo format [2]).

All these difficulties would cause a slowdown or abandonment of software development, an increase of control of the internet by multinationals and would condemn the public to be mere consumers of information without contributing anything to the internet for fear of infringing patents (as has happened with the GIF and JPEG image formats [23]).

The 30,000 illegal software patents that the software sector can currently ignore would suddenly become valid and any business or institution would infringe several, with products that it had developed or acquired without worrying about patents for previously unpatentable subject matter.

It would weaken copyright in software, that is the base of all European software development, because independent creations protected by copyright would be attackable by patents.

The European software market would be left in the hands of large corporations from the USA or Japan, that are more aggressive in requesting patents and hold the majority of software patents granted by the European Patent Office. The directive would be protectionist, but would protect foreign capital.

There would be movement of capital in the computer sector to patent intermediaries and the European Patent Office, and movement of capital of all economic sectors to these few large software businesses in the USA and Japan.

Free software would disappear or would be marginalized, and this would imply a major setback in the history of computer science and a reduction of freedoms and options for software users, and even a cultural regression.

Opposition to the Directive

The EuropeanCommission is supported by some large, foreign businesses (normally those that let their patent department speak for them), the European Patent Office and all those intermediaries that could profit with this change, but practically all others oppose it. The following groups have already spoken out in opposition:

In favor of software patents 85 responses of 1447  - 6% 
Against software patents                           - 94%

Against, by group:

Individuals                              - 98,5%
SMEs                                     - 95%
Large businesses                         - 81%
Associacions                             - 45%

Users                                    - 99,6%
Students                                 - 99,5%
Academics                                - 98,0%
Software developers                      - 95,8%
Intellectual property professionals      - 33%
Governments                              - 22%

CALIU's Interest in the Subject: Patents Threathen Free Software

CALIU [25] is a non-profit association whose goal is collaborating in the use and distribution of, and contributions to the GNU/Linux operating system for Catalan-speaking users. The GNU/Linux operating system is free software, and jointly with other free software has enjoyed considerable growth in use in the last few years, extending to servers, personal computers, corporate mainframe computers, PDA's, etc.

Free software [64] is distributed under copyright and with licenses that grant everyone the use, study, free modification and redistribution, and hence the source code that generates the program is available. There are many people that develop, translate and improve free software, for diverse reasons: altruism, hobby, research, business...

Users have demonstrated appreciation for the freedoms and the quality of free software, and it is used for more and more things in more and more places. This growth appears to worry Microsoft, because it could harm its monopoly position and Microsoft has been unable to prevent it.

European governments have recognized some of the virtues of free software (with greater or less degree of understanding and committment) and have taken measures to use it in goverment agencies, and to foment its private use. One report [55] from Unisys for the European "Interchange of Data between Administrations" program recommends to use free software in governments. It was already proposed [56] by a temporary committee of the European Parliament on the Echelon information interception program. Also more recently, it has been proposed in a plan to create an EU security agency. Governments around Europe also support free software: United Kingdom [57], Germany [58], France [59], Spain [60], Extremadura [61], Finland [62], Catalonia [63]...

But European politics does not appear to have sought consistency when free software is proposed on one hand and software patents on the other. To make progress, free software needs a just legal structure. Software patents are harmful for all kinds of software, but in the specific case of free software, patents could make it disappear or marginalize it for various reasons:

As one of the objectives of free software is facilitating its study, any large business that wants to eliminate the competition presented by free software, can analyze whether the program uses patented methods much more easily than if the program were restricted (not free), therefore free software is more vulnerable to lawsuits.

The software that is distributed with a license that does not permit use without paying the distributor can dedicate part of its price to pay for any licenses for patents needed (even though this possibly costs so much the company may eventually go broke). The developer of free software has chosen to allow free distribution and use of his software, and as such cannot even be sure how many copies of the program there are. Only at great difficulty could he pay for an unlimited license.

One of the reasons for the superior quality that free software often exhibits is that people all over the world have contributed via the internet. A typical free program is the sum of contributions of many people and the origins of its source code may lie in many other free programs. Restricted programs often do not have this possibility, because their licenses do not permit contributing to or borrowing from their source code (that often is not even available) for other projects, and very often free software cannot be combined with non-free software because the license prohibits it. When a program is developed in such a decentralized manner, as is the norm with free software, the responsability to know if a contribution infringes a patent presents some legal risks that are unbearable.

This worldwide heritage of free software, including GNU/Linux [54], would be lost if the proposed directive of the Commission were approved, and CALIU would cease to exist (or have legal problems). This is what has lead us to demand an action that not only avoids our disappearance and that of the software that we defend, but that avoids serious harm to software and computer science in general.

URGENT NEED FOR ACTION

Software patents awaken the opposition of many people, because they are very harmful, but the European Commission and the European Patent Office seems to be more sensitive to the minority of bureaucrats and oligopolists that benefit. The commission ignores the opinions received and presents the matter in a way that is hardly precise. If the commission succeeds in getting the proposal approved, the consequences could be terrible.

The position of the Commission is so biased that it has named [77] as a representative to the Council of Ministers workgroup the selfsame European Patent Office, that does not form part of the EU and that has interests in covering for its irregular behavior and ensuring the income of greater fees for itself, for the more patents the better. Member states are likewise partial in sending negotiatiors from the respective patent offices. And the Danish presidency in the Council hurried to pass a document[85] in mid november 2002, in order to exert pressure on the European Parliament.

With respect to the European Parliament, the draft report [86] from the Committee on Legal Affairs and the Internal Maket (JURI) rapporteur backs the EPO practice and reinforces the patentability of software proposed by the Commission. It completly ignores the opinions of the other two committees it should consider, ITRE and CULT [81] (who had solved most of the problems in the Commission proposal), and also ignores the opinion of the Economic and Social Committee of the EU [78]. The first working documents [65][66] of the JURI committee were already very favorable to software patents and criticism of them has not been taken into account since. The committee presented a critical study, but that overlooks the principal problems [67]. The 7th of November, 2002 a hearing was held before the judicial committee [79] with several experts, with different points of view, and few agreed with the directive as it was proposed. For many, the proposal of the commission did not define clear limits on patentability. The same happens with the rapporteur draft. But there are several amendments [87] tabled by other members of the JURI comité, some of them quite good.

The 7th and 8th of May, 2003 saw reivindicative happenings and debates [88], both inside and outside the European Parliament (in Brussels), with some of the best experts in the world, software and patent professionals, stakeholders and MEPs.

If a directive on software patentability is needed, it would have to be to request member states eliminate the clause "as such" from article 52 of the European patent convention to avoid future interested misinterpretations. Even more important, though, is to resolve that the correct interpretation of the convention is that patents must be granted only for inventions, that is new insights on the use of forces of nature, not for informational or logical creations like computer software, mathemathical formulae or business plans, that use apparatuses already known, like a computer.

This is just what is proposed in an alternative text for the directive [68] that could be used as amendments to the totality of the Commission text, which the European Parliament and the Council should consider. And, beyond this directive, we have proposed a set of actions [69] to correct the current mess, which have already received support from politicians, managers, professors, and associations.

Because of all this, Caliu requests that politicians, parties and institutions take clear positions against software patents and demand effective control measures to avoid that the European Patent Office keeps on inventing its own rules independent of the law at the expense of prosperity in Europe. It would also be important that the new kind of patent called Community Patent [9] was managed by an institution not so outside democratic control and unfaithful to the law as the European Patent Office[4].

We must return to the traditional line that the German federal tribunal decision Dispositionsprogramm illustrates  [13].

And there's not much time left to do it. For this reason, we would like you to:

To contact us:

CALIU
main office:
Passeig de Fabra and Puig, 376, 2-2
08031 Barcelona

Registered in the Official Registry of Associations of the Generalitat of Catalunya, as number 25400.

People to contact:

Xavi Drudis Ferran <xdrudis@tinet.org>

Francesc Genové <sly@grn.es>

Eduard Fabra and Bori <edufabra@teleline.es>

Josep Maria Fabrega Sanchez <jah@ant.eupvg.upc.es>

Emili Masnou <emasnou@cruzverde.com> o emasnou@netscape.net

For More Information

You will find abundant material on software patents at the following web sites:

http://cip.umd.edu/Aigrain.htm
http://swpat.ffii.org
http://www.aful.org
http://prionnova.hispalinux.es
http://www.freepatents.org
http://www.pro-innovation.org
http://petition.eurolinux.org
http://www.researchoninnovation.org
http://lenz.als.aoyama.ac.jp/Stellungnahmen/Sink_the_software_patent_propasal.htm

and at the reference links at the bottom of this page.

We are thankful to Matt Bonner for translating this text from Catalan to English.

References

[1] Directive Proposal
German    http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92de.pdf 
English   http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92en.pdf 
French    http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92fr.pdf 
Spanish   http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92es.pdf
Danish    http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92da.pdf
Italian   http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92it.pdf
Dutch     http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92nl.pdf
Portugese http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92pt.pdf
Finnish   http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92fi.pdf
Swedish   http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92sv.pdf
Greek     http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92el.pdf
[2] Tolls on the information superhighway (to view MPEG 4 video) 
English  http://petition.eurolinux.org/pr/pr18.html
[3] European Patent Convention
English  http://www.european-patent-office.org/legal/epc/ 
German http://www.european-patent-office.org/legal/epc/index_d.html 
French http://www.european-patent-office.org/legal/epc/index_f.html
[4] European Patent Office (EPO)

FFII page about the EPO:
English http://swpat.ffii.org/players/epo/index.en.html
German http://swpat.ffii.org/players/epo/index.de.html

A can Ribot malcrien el porc (unstranslatable account of lack of control on the EPO)
Catalan http://patents.caliu.info/porc.html

Official EPO page:
English http://www.european-patent-office.org/ 
French http://www.european-patent-office.org/index_f.htm 
German http://www.european-patent-office.org/index_d.htm
[5] Study ordered by the Comission
English http://europa.eu.int/comm/internal_market/en/indprop/studyintro.htm
[6] One of the economic studies that advises against software patents
James Bessen & Eric Maskin 
Sequential Innovation, Patents and Imitation, 
Working Paper, Department of economics MIT, Cambridge, Massachusets. 
English  http://www.researchoninnovation.org/patent.pdf
[7] Summary and independent study of the responses to the Commission's survey
English  http://swpat.ffii.org/vreji/papri/eukonsult00/
[8] Official report of the Commission 
English  http://www.europa.eu.int/comm/internal_market/en/indprop/softpatanalyse.htm 
French http://www.europa.eu.int/comm/internal_market/en/indprop/softpatanalyse.htm 
German http://www.europa.eu.int/comm/internal_market/de/indprop/softpatanalyse.htm
[9] Position of Eurolinux on community patents
English   http://www.eurolinux.org/news/cpat01B/indexen.html 
Spanish http://www.eurolinux.org/news/cpat01B/indexes.html
[10] Warning from Eurolinux on the BSA directive
English   http://www.eurolinux.org/news/warn01C/indexen.html 
Spanish http://www.eurolinux.org/news/warn01C/indexes.html 
German  http://www.eurolinux.org/news/warn01C/indexde.html 
French  http://www.eurolinux.org/news/warn01C/indexfr.html 
Italian   http://www.eurolinux.org/news/warn01C/indexit.html
[11] Commentary from Eurolinux on the proposed directive
English  http://swpat.ffii.org/vreji/papri/eubsa-swpat0202/indexen.html
[12] European software patents horror gallery 
English  http://swpat.ffii.org/vreji/pikta/index.en.html 
German http://swpat.ffii.org/vreji/pikta/index.de.html 
French http://swpat.ffii.org/vreji/pikta/index.fr.html
[13] Judicial verdict that delimits what should be patentable and 
the meaning of "computer program as such"
       BGH 1976-06-22: Dispositionsprogramm
German http://swpat.ffii.org/vreji/papri/bgh-dispo76/indexde.html 
English  http://swpat.ffii.org/vreji/papri/bgh-dispo76/indexen.html 
French http://swpat.ffii.org/vreji/papri/bgh-dispo76/indexfr.html
[14] Press release from the Directorate General for the Internal Market 
English  http://www.europa.eu.int/comm/internal_market/en/indprop/02-277.htm
German http://www.europa.eu.int/comm/internal_market/de/indprop/02-277.htm 
French http://www.europa.eu.int/comm/internal_market/fr/indprop/02-277.htm
[15] Question and answer list from the Commission 
English  http://www.europa.eu.int/comm/internal_market/en/indprop/02-32.htm 
German http://www.europa.eu.int/comm/internal_market/de/indprop/02-32.htm 
French http://www.europa.eu.int/comm/internal_market/fr/indprop/02-32.htm
[16] Moral corruption of the patent system
English  http://swpat.ffii.org/stidi/tisna/indexen.html
[17] Resolution from the Dutch Parliament requesting that patentability 
not be expanded until the problems with the current system are resolved.
English http://www.linuxjournal.com/article.php?sid=5085
[18] Studies on innovation and software patents. 
English  http://swpat.ffii.org/vreji/minra/siskuen.html 
French http://swpat.ffii.org/vreji/minra/siskuen.html 
German http://swpat.ffii.org/vreji/minra/siskude.html
[19] Patent examiners complain that they cannot execute their tasks well
Union Syndicale, Bulletin Agora, Juin 2000, pages 12-13 (no longer on the web) 
French http://patents.caliu.info/usoeb/usoeb_juin_2000.pdf
French http://home.tvd.be/rc20042/public/


Note from the European Patent Office workers' union, which was on their web site
in May of 2002 and no longer appears there.
English http://patents.caliu.info/usoeb.html
[20] A student explains how his colleagues "reinvented" the patented XOR drawing method. 
English  http://petition.eurolinux.org/consultation/sqlGetMail/170/viewMail?NO_COOKIE=true
[21] BT patents web links
Catalan http://nosaltres.vilaweb.com/vilaweb//cerca_u.noticia?p_idint=100000465074
[22] Bibliography against software patents. 
Danish and English http://www.softwarepatenter.dk/economics_articles.html
English http://swpat.ffii.org/vreji/prina/index.en.html
        http://swpat.ffii.org/vreji/minra/sisku.en.html
        http://swpat.ffii.org/vreji/papri/index.en.html
German http://swpat.ffii.org/vreji/prina/index.de.html
       http://swpat.ffii.org/vreji/minra/sisku.de.html
       http://swpat.ffii.org/vreji/papri/index.de.html
French http://swpat.ffii.org/vreji/prina/index.fr.html
       http://swpat.ffii.org/vreji/minra/sisku.fr.html
       http://swpat.ffii.org/vreji/papri/index.fr.html
[23] Problems with the GIF image format 
English http://lpf.ai.mit.edu/Patents/Gif/lpf_position.html
Problems with the JPEG image format 
Catalan http://patents.caliu.info/nota180702.html
[24] Position of the Committee of the Regions of the European Union 
English  http://swpat.ffii.org/vreji/cusku/indexen.html#cor 
French http://swpat.ffii.org/vreji/cusku/indexfr.html#cor 
German http://swpat.ffii.org/vreji/cusku/indexde.html#cor
[25] CALIU
Catalan http://www.caliu.info
[26] Opinion of Philippe Aigrain, 
Head of Sector "Software Technologies" 
in the unit "Technologies and Engineering for Software, Systems and Services" 
of the European Commission Information Society Technologies R&D Programme,
English  http://cip.umd.edu/Aigrain.htm
[27] Trivial software patents can not be avoided 
English http://swpat.ffii.org/stidi/frili/indexen.html
[28] New EPO rules
English http://www.european-patent-office.org/legal/gui_lines/e/c_iv_2.htm
[29] The technicity criteria
English http://swpat.ffii.org/analysis/invention/index.en.html
[30] Collection of redundant provisions in the proposed directive to make software patentable
Catalan http://patents.caliu.info/dgiv.ca.html#trucs
English http://patents.caliu.info/dgiv.html#trucs
[31] Q&A about the European Commission's Q&A
English http://swpat.ffii.org/papers/eubsa-swpat0202/faq/index.en.html
[32] The  ASF video format is covered by patent
English http://swpat.ffii.org/patents/effects/asf/index.en.html
[33] The MP3 audio format is covered by patents
English http://swpat.ffii.org/patents/effects/mpeg/index.en.html
[34] Th JPEG image format is covered by patents
Catalan http://patents.caliu.info/nota180702.html
[35] The GIF image format is covered by patents
English http://swpat.ffii.org/pikta/xrani/gif-lzw/index.ca.html
[36] Censorship by patents: 
A pro-patent critic charged with violating a software patent
English http://swpat.ffii.org/patents/effects/rozmanith/index.en.html

[37] The IEEE patent policy
English http://www.ftc.gov/os/comments/intelpropertycomments/ieee.pdf
[38] The IETF patent policy
English http://www.ietf.org/html.charters/ipr-charter.html
[39] Call for action
Multilingual http://swpat.ffii.org/papers/eubsa-swpat0202/demands
[40] France rejects the directive
English http://swpat.ffii.org/papers/eubsa-swpat0202/france020301/france020301.en.html
[41] News of the opposition by all French parties to software patents
French http://www.liberation.fr/quotidien/semaine/020312-040031013ECON.html
[42] The German antitrust commission is against the directive
German http://www.monopolkommission.de 
[43] SPECIS union against software patents
French http://linuxfr.org/2001/12/16/6375,0,1,0,0.html

[44] Association of Danish IT professionals PROSA.DK
Danish and English http://www.prosa.dk/
[45] Internet Society France against software patents 
French http://swpat.ffii.org/papiers/eukonsult00/isf/index.fr.html
[46] Internet Society Luxembourg against software patents
French http://swpat.ffii.org/papers/eukonsult00/walle/index.fr.html
[47] BBC against software patents
English http://swpat.ffii.org/papiers/eukonsult00/bbc/index.en.html
[48] Dutch Labor party opposes software patentability.
English http://swpat.ffii.org/papers/eubsa-swpat0202/pvda020220/index.en.html
[49] The Opera company is against software patents
English http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/1415
[50] The company ILOG is against the patents
English http://swpat.ffii.org/archive/quotes/index.en.html#haren01
[51] Campaing against software patents by the ESR Pollmeir company
German and English http://www.esr-pollmeier.de/swpat/
[52] FENIT professional association in Holland against software patents
English http://www.vosn.nl/patenten/kriteria_fenit_vosn_english/
[53] Group proinnova of ATI.  
Spanish http://www.ati.es/noticias/doc/20020711101106.html
[54] Linus Torvalds does not even want to know what legal risks Linux faces due to software patents
English http://lwn.net/Articles/7001/
[55] Report by Unisys on the use of free software in public administration
English http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/02/1010|0|RAPID&lg=EN

The document titled "Part 3: The Open Source Market Structure" talks about software patents, pp 54-55
English http://europa.eu.int/ISPO/ida/jsps/index.jsp?fuseAction=showDocument&parent=news&documentID=550
[56] The EU proposes using free software to improve security
p. 56 of reference 55 of this document
Draft report of the European Parliament Temporary Committee on the Echelon Interception System
[57] Free software in the administration of the United Kingdom
English http://zdnet.com.com/2100-1104-945784.html
[58] Free software in the German administration
English http://www.gnupg.org/aegypten/
English http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2869075,00.html
English http://www.computerworld.com/softwaretopics/os/linux/story/0,10801,71659,00.html
English http://www.nwfusion.com/newsletters/linux/2002/01383301.html
English http://www.pcmag.com/article2/0,4149,16097,00.asp
[59] Free software in France
See reference 55, Document "Part 2: Use of Open SOurce in Europe", pp. 28-36
[60] Free software in the Spanish administration
Rhodas Project of the Public Administration Ministry
that also recommends avoiding software patents
Spanish http://lucas.hispalinux.es/Articulos/0000otras/doc-proyecto-rhodas/doc-proyecto-rhodas/
(also p. 55 of reference 55, document "Part 2: Use of Open Source in Europe",
[61] Debian in the Extremadura Government (Junta)
Spanish http://www.linex.org/
[62] Free Software in the Finnish administration
English  http://linuxtoday.com/news_story.php3?ltsn=2002-06-17-011-26-NW-DP-PB&tbovrmode=1#talkback_area
[63] Free Software in the Catalan Public Administration
 p. 37 of the Official Bulletin of the Parliament of Catalunya, n. 318
Catalan http://www.parlament-cat.es/pdf/06b318.pdf 
[64] About free software
Multilingual http://www.fsf.org/
[65] Work in progress at the European Parliament Committee on Legal Affairs and Internal 
Markets about the facts
Catalan http://patents.caliu.info/mcCarthy-facts.ca.html 
English http://patents.caliu.info/mcCarthy-fact.html 
[66] Work in progress at the European Parliament Committee on Legal Affairs and Internal 
Markets about their questions
Catalan http://patents.caliu.info/mcCarthy-opinion.ca.html
English http://patents.caliu.info/mcCarthy-opinion.html 
[67] Report by Bakels and Hugenholtz on software patents,
presented by the legal commission of the European parlament
Catalan http://patents.caliu.info/dgiv.ca.html
English http://patents.caliu.info/dgiv.html
[68] Counter proposal for the directive
English, French and German (HTML and PDF) http://swpat.ffii.org/papers/eubsa-swpat0202/prop/ 
[69] Call for action
Multilingual http://swpat.ffii.org/papers/eubsa-swpat0202/demands/
[70] Patenting Software Under the European Patent Convention  
Keith Beresford
Sweet & Maxwell; ISBN: 0752006339
English http://www.smlawpub.co.uk/products/cat/mydetails.cfm?title=5414&detail=5414
[71] Average price of a European patent
English http://www.european-patent-office.org/epo/new/kosten_e.pdf
[72] EBay says they face possible massive losses and closing US operations because of
the parasitic company that just sued eBay
English  http://news.com.com/2100-1017-956638.html
[73] Statistics from the Telecomunications and Information Society Secretary 
Catalan http://www.gencat.es/csi/pdf/cat/estadistiques/Oferta_TIC_2001/2_Situacio_actual.pdf
[74] Converting Capital Into Software That Works
Joel Spolsky
English http://www.joelonsoftware.com/articles/fog0000000074.html
[75] Summary of the counterargument of the implications of the TRIPS agreement
English http://swpat.ffii.org/analysis/trips/index.en.html
[76] statistical estimates of the number of software patents
English http://swpat.ffii.org/patents/swpatperled/index.en.html 
[77] The European Commission names the European Patent Office Working Group 
as representative
English http://swpat.ffii.org/papers/eubsa-swpat0202/epo020621/index.en.html
[78] Opinion CES1031-2002 of the EU Social and Economic Committee 
against the software patentability directive 
English http://europa.eu.int/eur-lex/pri/en/oj/dat/2003/c_061/c_06120030314en01540163.pdf
[79] Web pages about the hearing of the Legal Affairs and Internal Market
of the European Parliament on the software patentability directive 

Oficial page
http://www.europarl.eu.int/hearings/20021107/juri/default_en.htm
Report by a Caliu member who attended
http://patents.caliu.info/audiencia.html
Report by Hartmut Pilch, who testified
http://swpat.ffii.org/events/2002/europarl11
[80] Some opinions from the USA critical of their patent system

Academics: Lawrence Lessig
The Exclusive Right to Stagnate
English http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory&c=StoryFT&cid=1045510979794&p=1012571727092

Companies: Oracle, Borland, Cisco, etc.
English http://www.jamesshuggins.com/h/tek1/software_patent_oracle.htm
English http://www.jamesshuggins.com/h/tek1/software_patent_borland.htm
English http://swpat.ffii.org/vreji/quotes/index.en.html#ftc020228-cisco

Lawyers: 
Gary Reback (former Sun lawyer)
English (original) http://www.forbes.com/asap/2002/0624/044.html
Catalan (extract) http://patents.caliu.info/presentacio/ibmsun.html

Head of the US Patent and Trademark Office
Anglès http://news.com.com/2100-1017-956638.html?tag=fd_top

Alan Greenspan, president of the US federal reserve
Anglès http://www.federalreserve.gov/BoardDocs/speeches/2003/20030404/default.htm
[81] Opinions of the parliamentary committees in the European Parliament
According to the opinion of the Cultutre committee, article 2.a would
allow to consider invention something where all new features where 
in software only

The opinion of the Industry committee failed to approve the amendment 
defining the concept of "technical" and left the articles full of 
uses of the word "technical", undefined. Since the EPO considers that
optimizing memory usage, speed or security in a computer system is enough to
have "technical effects", any computer program would be regarded as
having them.

Other than that, they fix the rest of problems with the directive. 

Opinion of the CULT committee in the European Parliament
English http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019en.pdf
German http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019de.pdf
French    http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019fr.pdf
Spanish  http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019es.pdf
Danish      http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019da.pdf
Italian      http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019it.pdf
Dutch http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019nl.pdf
Portuguese   http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019pt.pdf
Finnish       http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019fi.pdf
Swedish        http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019sv.pdf
Greek       http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019el.pdf

Opinion of the Industry committee in the European Parliament
English http://www.europarl.eu.int/meetdocs/committees/juri/20030317/490455en.pdf
German http://www.europarl.eu.int/meetdocs/committees/juri/20030317/490455de.pdf
French http://www.europarl.eu.int/meetdocs/committees/juri/20030317/490455fr.pdf
Spanish http://www.europarl.eu.int/meetdocs/committees/juri/20030317/490455es.pdf
Italian http://www.europarl.eu.int/meetdocs/committees/juri/20030317/490455it.pdf
Danish http://www.europarl.eu.int/meetdocs/committees/juri/20030317/490455da.pdf
Dutch http://www.europarl.eu.int/meetdocs/committees/juri/20030317/490455nl.pdf
Greek http://www.europarl.eu.int/meetdocs/committees/juri/20030317/490455el.pdf
Portuguese http://www.europarl.eu.int/meetdocs/committees/juri/20030317/490455pt.pdf
Finnish http://www.europarl.eu.int/meetdocs/committees/juri/20030317/490455fi.pdf
Swedish http://www.europarl.eu.int/meetdocs/committees/juri/20030317/490455sv.pdf
[82] Petition by 30 leading computer scientists to the European Parliament 
against software patents
Catalan, French and English http://el-attacante.levillage.org/modules.php?name=News&file=article&sid=44#2
[83] The electoral program for the UK liberal party rejects software patents
English http://www.makeitpolicy.org.uk/PP-ISociety-Copyright.html

[84] EU plans to create a security agency, one of their actions being
"Promote the development and deployment of open source software security platforms
for effective 'plug and play'."
English http://www.theregister.co.uk/content/6/29269.html
[85] Commentary on the Danish presidency proposal in the Council
English http://swpat.ffii.org/papers/eubsa-swpat0202/dkpto0209/ 
[86] Draft report by the JURI committee rapporteur
Portuguese http://www.europarl.eu.int/meetdocs/committees/juri/20030324/488980pt.pdf
Finnish http://www.europarl.eu.int/meetdocs/committees/juri/20030324/488980fi.pdf
Swedish http://www.europarl.eu.int/meetdocs/committees/juri/20030324/488980sv.pdf
Spanish http://www.europarl.eu.int/meetdocs/committees/juri/20030324/488980es.pdf
German http://www.europarl.eu.int/meetdocs/committees/juri/20030324/488980de.pdf
Greek http://www.europarl.eu.int/meetdocs/committees/juri/20030324/488980el.pdf
French http://www.europarl.eu.int/meetdocs/committees/juri/20030324/488980fr.pdf
Italian http://www.europarl.eu.int/meetdocs/committees/juri/20030324/488980it.pdf
Dutch http://www.europarl.eu.int/meetdocs/committees/juri/20030324/488980nl.pdf
English http://www.europarl.eu.int/meetdocs/committees/juri/20030324/488980en.pdf
Danish http://www.europarl.eu.int/meetdocs/committees/juri/20030324/488980da.pdf

Critique of the rapporteur's draft report
English http://swpat.ffii.org/papers/eubsa-swpat0202/amccarthy0302/index.en.html
[87] Amendments by other MEPs in the JURI committee
Portuguese http://www.europarl.eu.int/meetdocs/committees/juri/20030422/495297pt.pdf
Finnish http://www.europarl.eu.int/meetdocs/committees/juri/20030422/495297fi.pdf
Swedish http://www.europarl.eu.int/meetdocs/committees/juri/20030422/495297sv.pdf
Spanish http://www.europarl.eu.int/meetdocs/committees/juri/20030422/495297es.pdf
German http://www.europarl.eu.int/meetdocs/committees/juri/20030422/495297de.pdf
Greek http://www.europarl.eu.int/meetdocs/committees/juri/20030422/495297el.pdf
French http://www.europarl.eu.int/meetdocs/committees/juri/20030422/495297fr.pdf
Italian http://www.europarl.eu.int/meetdocs/committees/juri/20030422/495297it.pdf
Dutch http://www.europarl.eu.int/meetdocs/committees/juri/20030422/495297nl.pdf
English http://www.europarl.eu.int/meetdocs/committees/juri/20030422/495297en.pdf
Danish http://www.europarl.eu.int/meetdocs/committees/juri/20030422/495297da.pdf
[88] Program for debates and meetings on 7-8.5.2003
English http://www.greens-efa.org/fr/agenda/detail.php?id=998&lg=fr
English http://swpat.ffii.org/events/2003/europarl/05/index.en.html
[89] Laura Creighton, venture capitalist investing in computer companies, 
comments on software patents
English http://www.vrijschrift.org/swpat/030508_1/index.html


 
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