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 expensive 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 dataprocessing, 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
- Rocard’s outline contains all the necessary ingredients for a directive that achieves what most member state governments say they want to achieve: to exclude computer programs from patentability while allowing computer-controlled technical inventions to be patented. Perhaps Rocard is showing here the same qualities that won him fame as the peacemaker of New Caledonia. If the MEPs can vote for Michel Rocard’s amendments in June and July, the Parliament will then, in the ensuing Conciliation procedure, be able to negotiate with the Council from a position of strength.
JURI will take its final decision on June 20th, followed by the Parliament’s plenary vote around 6 July.
UEAPME, which represents 11 million European SMEs, supports Rocard’s report
Analysis of several sample patents and how they would or would not be affected by the proposed definitions
Hartmut Pilch and Holger Blasum
info at ffii org
erjos at ffii org
jmaebe at ffii org
Dieter Van Uytvanck
dieter at vrijschrift.org
The Foundation for a Free Information Infrastructure (FFII) is a non-profit association registered in several European countries, which is dedicated to the spread of data processing literacy. The FFII supports the development of public information goods based on copyright, free competition, open standards. More than 500 members, 1,400 companies and 80,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing. The FFII maintains offices in Munich and Brussels and national supporter groups in most European countries.