FFII comments on rapporteur Rocard's software patents report

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Brussels, 28 April 2005 -- The FFII warmly welcomes the report of Michel Rocard MEP following its discussion by the European Parliament's Legal Affairs Committee (JURI) last week. The Parliament's rapporteur for the software patent directive has delivered a text which is notable for its clarity and explains this complex issue in an enlightening way.

The report, titled "Working document on the patentability of computer- controlled inventions", presents the basic problem: should software be patentable? If not, then how do we define a clear limit which would exclude software from patentability while devices controlled or assisted by software means would still be patentable?

The FFII strongly supports the approach of defining this boundary between patentable and non-patentable subject matter by means of using controllable forces of nature. That expression is mentioned at least ten times in the current examination guidelines of the German Patent Office. Rocket scientists and high-energy astronomers at NASA use the term. It is entrenched in German case law and codified in Japanese patent law.

The forces of nature doctrine ensures that judges and policy makers keep their ability to limit patentability if this is deemed to be in the interest of innovation and the economy as a whole. At the same time it guarantees patentability for inventions which require extensive empirical experimentation and allows for a grey zone for innovations straddling the abstract and physical worlds.

Additionally, excluding data processing from being a field of technology ensures !TRIPs compliance and provides another safeguard to prevent pure logic innovations from becoming patentable. At the same time, this does not mean that innovative devices used for data processing, nor e.g. automated looms, automatically become unpatentable.

The flexibility of both approaches stands in stark contrast to the Council text which will open up virtually any innovation to patentability, as long as a computer is mentioned somewhere in the patent claims. Keeping all options open is not an extreme position, but abolishing all safeguards is.

Hartmut Pilch, President of the FFII, concludes

JURI will take its final decision on June 20th, followed by the Parliament's plenary vote around 6 July.

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