There are many that live in denial.

They deny that the software patents directive will make software patentable.

[ Patent News ]Acknowledgements of CII = software ]

Software as such

Software as such can not be patented. The directive, Council version may 18th 2004, says:

• "4.1.(new) A computer program as such cannot constitute a patentable invention."

If the directive says it, it has to be true, not? Well, there is one problem, "A computer program as such" is not defined. And if we leave it to the European Patent Office, "A computer program as such" is totally meaningless. Art 2a makes computer programs patentable:

• "(a) “computer-implemented invention” means any invention the performance of which involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program or computer programs;"

People who say that software as such can not be patented, intentionally or unintentionally say something that is meaningless. Many said it, for instance:

- The directive, Council version may 18th 2004

- Minister Brinkhorst in OpenMagazine (Dutch)

Only technical inventions can be patented

Nice, but "technical" is not defined in the directive, Council version may 18th 2004.

Furthermore, traditionally, the patent grant threshold is way too low. For instance, cars have their side mirrors attached to the doors. Earlier the mirrors were attached to the front of cars. The idea to place the mirrors at the doors, has been patented. So, an invention is often nothing more than an idea. Software is full of ideas. "Only technical inventions can be patented." is meant to be reassuring - it is not. It will only lead to a host of trivial patents, as the webshop shows. Many said it, for instance:

- Minister Brinkhorst in OpenMagazine (Dutch)

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CII = ABS, Vacuum cleaner

• Eicta, C4C, Patents4Innovation

Specific device

• "Additionally, it is again confirmed that software on its own, separate from an application in a specific device, is not patentable."

June 16th, Dutch State Secretary Karien van Gennip in a letter to Parliament, page 9. This confirmation is supposed to be in art 4A, which reads:

• "Article 4a. Exclusions from patentability 2. A computer-implemented invention shall not be regarded as making a technical contribution merely because it involves the use of a computer, network or other programmable apparatus. Accordingly, inventions involving computer programs, whether expressed as source code, as object code or in any other form, which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run shall not be patentable."

It is not here, and the letter also fails to show where it is the first time ("again confirmed" implies an earlier occurrence). In fact, key definition art 2a mentions "computer", "computer network", "other programmable apparatus" and "computer programs" together. It has been said often, while it is not in the directive at all...

Harmonisation of existing pratice

Harmonisation is reached by any directive. But in fact the directive will not harmonise if "technical" remains undefined, because interpretation differs among member states. In fact the directive as proposed by the commission or the council will harmonise the EPO drift which happened without any change of law. The EPO interpretation is not followed by many national courts and patent offices.

Balanced

• "But the Commission has always been committed to making sure that patents in this field, as in any other, cannot be used to squeeze out legitimate competition or to prevent others getting fair access to technology and ideas. This text achieves that balance and I very much hope the new European Parliament will be able to adopt it swiftly."

Eurocommissionar Frits Bolkestein

We have seen that 'technical' is not defined, that the 'patent grant treshold' is way too low. There is nothing balanced about the Council's May 18th 2004 text.

• "(...) thoughtful compromise that specifically restricts patents to inventions that include an inventive step and make a technical contribution to a problem."

Almost all denials in one sentence! Mr Hugo Lueders, a Microsoft paid lobbist in a letter to the Financial Times.