Introduction

The members of the European Parliament at second reading on the directive on software patents, or, in the official wording – to the patentability of “computer-implemented inventions” are to vote on July 5. In the run-up to much about this policy discussion that should protect the interests of the developers of free software, small and medium-sized enterprises (SMEs), as well as large corporations.

The purpose of patents

Patents are to encourage the disclosure of inventions and prevent in an extreme case, that their spiritual fathers take them into the grave. To do this, the State guarantees the inventor a 20 years perpetual monopoly on commercial exploitation of the invention. Also investing companies for the resulting costs should be remunerated by research. Unlike copyright, patent law protects not a concrete application or implementation, but the idea or the procedure which it is used. Instead of the work, so is the invention at the heart. You must not register copyright in contrast to the patent law, because it automatically with the creation of the work.

In the European Patent Convention of 1973, harmonisation of patent law in Europe and thereby “Programs for computers” explicitly excluded from patentable inventions. In 1985 the European Patent Office sets this provision from however so loosely, to exclude only “non-technical” inventions from a patent. This vague wording is the now controversial issue practice, which has so far led to an estimated 30,000 software patents. (Source)

History of the directive

Three institutions are involved in the process of the adoption of the directive, which must transpose into national law the Member States of the European Union within a certain period. Guidelines are initially prepared by the Commission applied a Government role, with each member country provides a Commissioner. According to their design, guidelines must go through the Council and the Parliament. The Parliament and the Council are the two legislative institutions of the European Union. The Council is composed of the Governments of the Member States, resulting in the consequence, that legislative (legislative) tasks are carried out by the Executive. The representatives elected in June of last year during the European elections, of which currently 99 from Germany come sit in the Parliament.

At first reading in September 2003 the Parliament had made extensive, highly restrictive the patentability of software changes to the draft drawn up by the Commission. In May 2004, however, the Council had decided, are these changes only in part, to take over and then in March 2005 this position the resistance of some Member States despite and to create a precedent for the delay of other directives formally adopted (source). The members of the European Parliament (MEPs) the last and thus decisive way, to obtain amendments to the directive have now at second reading. Should an absolute majority vote against the proposed directive, there would be a conciliation procedure, on the other hand, the directive has been adopted. Curiously absent members during the vote count automatically after second reading to the supporters of the directive.

Patent search

Why are now software patents according to many a problem for small and medium-sized enterprises (SMEs), as well as free software developers, and ultimately society as a whole? In the first place, it should be the already high number of software patents in connection with the often dubious, so actually too low level of invention. In addition the extremely abstract describing the actual invention, so-called patent specification. This must reveal an invention although as far as an expert of the respective area can they understand and apply. Significantly worse however, that the far-reaching, only become clear from this resulting claims after multiple reading.

These three points together effectively prevent that one in advance could learn when developing software of any patent infringement! Specifically, no alternative, thus arises as to realize his ideas with a little hope and sallow feeling in the stomach and to hope that you will not patent holder gets in the way. Casually said it has asked either, because it infringes a patent or is this just not striking the rights-holder, or has bad luck and is to pay luck.

Innovative actions

Software patents should without effective restrictions, for example, what the level of invention regards, pass through the Parliament at second reading, many companies thus face a major problem. Innovative, entrepreneurial action should be promoted hardly by that one cannot be certain to after the costly design and manufacture of a product, to infringe a patent, and not again to take the product from the market. In addition at least one year of the patent application typically goes by up to the issue. During this time, the patent specification is not publicly visible, so that you, doesn’t even have the theoretical possibility apart from limiting the patent search, lying beyond of good and evil, to review its product for patent violations ranging.

Because software patents thus represent an incalculable risk, large corporations take preventive measures in the form of the extension of its patent portfolio to be prepared in case of own patent infringement and an Exchange with the aim to:

≪ blockquote > Oracle Corporation patent policy

“Unfortunately, Oracle has been forced to apply for selected patents, which offer the best opportunities for cross-licensing transactions between Oracle and other companies that could imply patent violations, as a defense strategy.” (Source)

By proponents, we often hear that especially SMEs would benefit from software patents. We assume it is violating a patent of a SME is a group with large patent portfolio. Then this will consider it not only once, take legal action against the group. Because the likelihood is great that you injured yourself at least a patent of the group – the shot could quickly backfire.

Healthy competition

By a software patent is a monopoly for granted in this industry published unbelievably long, 20 years. The holder can relax during this time. Specifically said may be the product of their own, implementing the invention flawed, vulnerabilities have or be available only for a particular operating system: for 20 long years no one would have the right to change something, in this situation without one not just at dumping prices verscherbelte license by the holder to purchase – should be this ready at all. This fits a quote from Bill Gates in 1991, when Microsoft took still not in a dominant position in the software market:

≪ blockquote > Bill Gates

“If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today.”

Proper translation: “If the people were invented at that time, as most nowadays relevant ideas, understood the principle of patents and patents pending would have, the industry would be today entirely paralyzed.”

If it results in mind, on what “trivial”inventions”patents are granted, may we ourselves lucky that, for example, in the 1980s no one has come up with the idea to be patented in the graphical user interface. Anyone may please at least partially selected by the linked list, already by the European Patent Office of granted patents click through and then each decide for themselves whether a level of invention is given, which justifies a patent.

Open source software

Open source software, whose largest Teilmenge is free software (not to be confused with freeware), has not only no benefits from software patents, but will also further disadvantaged by an exuberant patent system. Because on the one hand it allows the disclosure of the source code third though, to check it for errors. On the other hand, but also the possibility is open competitors to concretely prove patent infringement which is not possible for proprietary software in this simple form. Open source software is healthy competition and promotes the proliferation of open standards, whereas this can be a very tedious matter so to speak “manual” regulation of the practices of a large corporation – “the European Union” should know that currently actually best…

Conclusion

Finally viewed software patents will provide many companies facing great problems. You new disadvantage occurring company in a market so that there is less competition. A preventive patent search is not feasible in practice. The directive proposed by the Council contains an effective approach to prevent the issue of trivial patents. Bound for litigation, financial resources are lacking in research and development. Positive impact on the innovativeness of the economy were not detected in contrast to classical patents and a 20-year monopoly is an eternity and pure poison for the economy for the conditions of the software industry.

The directive finally adopted will have to be compete because, whether most of the already granted software patents would will no longer granted on their basis. Before one intends to pour the common granting practice of the EPO in a law, should you to so be aware of the disastrous consequences and – as long as it’s not too late – the question, if there is not a better future for Europe.

There is further information in our encyclopedia on the topics of software patent, patent, and trivial patent. The list referred to in the section “Healthy competition” selected, granted by the EPO software patents is highly recommended.