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After detailed analysis of the current patenting practise, of the EU Directive Proposal, of related literature and of numerous example patents and patent applications as well as extensive discussions with proponents and opponents of software patentability, we have worked out a position paper on software patents, which includes a series of demands.
Statement on Software Patents
Software Patents do not provide any incentives for innovation (does anyone know a single entrepreneur who might ever have said that he would invest more in software development if only he could obtain patents for his software more easily?).
Software patents are often used to "protect" trivial details or basic ideas (often simple combinations of prior knowledge), whose publication certainly does not benefit the public (the patent monopoly is supposedly granted in return for some benefit to the public, such as a disclosure of valuable knowledge )
The current patenting practise of the EPO has produced a "large number of questionable [software] patents" (GI president Prof. Dr. Mayr).
Issuing an EU directive which legitimates the granting of software patents without seriously addressing the problems of the current patenting practise only leads to the proliferation of questionable software patents.
The technicity concept of much of the current patenting case law (software ideas are patentable if they can be claimed to be "technical") is vague enough to allow almost anything to be patented – a patent attorney who is unable to draw up some "technical considerations" and base his claims thereon would hardly be worth his lawyer fees.
The EU directive proposal's technicity concept does little more than to define software per se as technical and therefore patentable.
If practically any software can be patented, then any business process or algorithm can also be patented, if only the patent applicant is careful to claim it in software terms. Any possibly remaining shades of a possibly intended limits on patentability would be eroded in the course of application of this directive. Just look at what happened to Art 52 EPC and the concept of technical invention during the last 15 years! Case law development has a formidable power of eroding any limits on patentability, even when they are worded in much clearer terms.
Software patents granted on the basis of the current EPO practise and of the EU Directive Proposal lead to far-reaching monopolies in fundamental areas of current and future software application. These monopolies prevent competition and innovation and can destroy some of the best software companies.
The only survival strategy consists in accumulating patents in order to build up a counter-strike potential. In case of success, this is a money-burning nul-sum game. Otherwise it is expensive and deadly for the loser. (Is there already a patent game somewhere? Is the concept for such a game perhaps still available for patenting?)
The software patenting practise of the USA is continuing to be a cause for much discontent and criticism in the USA, and there is no reason for Europe to align its laws with that kind of practise. On the contrary, it would be advisable for Europeans to spend their time on unhindered innovation while unfortunate US competitors have to spend their time and money on patent litigation. Any European who wants or needs to apply for software patents in the US is free to do so.
If the EU would only invest a fraction of the large sums of money, that its far-reaching software patentability plans are bound to consume, into making it more convenient to apply for US patents, then it would have done more for European competitiveness than by this directive.
The above arguments do not contain words such as "small and medium enterprises", because they are independent of company size. Large companies often act as promoters of software patentability because either they believe that they can win the patent game (see item 8 above) or because their patent departments are acting on their own and confusing the company's interests with the patent department's interests.
In order to camouflage these motives, some standard arguments have been built up. Within these arguments, the concept of "technicity" plays a central role. Patents have always and will always be granted for "technical" inventions, it is said. This then leads into endless abstract discussions about textual analysis of laws and court decisions.
Therefore we demand that
further discussions of patentability are based on examples (patents, patent applications) and the meaning of terms such as "technical" is defined in light of these examples.
more practitioners of software development are invited to participate in the discussion
the proponents of software patents are measured according to the patenting practise of their companies. Some companies apply for patents on business methods and algorithms and at the same time go around asking people to support the EPO or the EU commission's directive project as a means of preventing patents on business methods and algorithms. Such companies are evidently trying to fool the public in order to gain an advantageous position for themselves in the patent game according to the above-stated item 8.
return to the classical concept of technical invention: a technical invention is, in the words of all German patent law textbooks, a
- teaching for planned action by use of controllable forces of nature for directly achieving a causally overseeable success.
The "controllable forces of nature" must be at the core of the problem solution in return for which a patent monopoly is desired. Technology/engineering is understood as the harnessing of the material world (as opposed to the mental/ideal/conceptual world).
In such a context, programmed processes are patentable and in such a context they should remain patentable. If an anti-blocking system (ABS) is based on new insights into physical causalities, it should be patentable independently of whether a computer program is used as a means of implementation. But the program itself, including its execution on a general-purpose computer for simulation purposes etc, should not be covered by the patent.
Plea for a Clear Concept of Technical Inventions (PDF, 236 KB)
Transparencies (translated) for a lecture given at a meeting of the working group "Communication in Industrial Automation" of the German electrical and electronic manufacturers' association ZVEI on 2002-06-05.
Please note: The software and hardware names, company names, and brand names used in this text may be subject to trademark, registered trademark, or patent protection.
Please send any suggestions, comments and critical remarks about www.esr-pollmeier.de/swpat/... to Stefan Pollmeier.