McCreevy wants to legalise Software Patents via a US-EU patent treaty

Brussels, 13 May 2008 — European Commissioner McCreevy is pushing for a bilateral patent treaty with the United States. This Tuesday 13 May in Brussels, White House and European representatives will try to adopt a tight roadmap for the signature of a EU-US patent treaty by the end of the year. Parts of the proposed treaty will contain provision on software patents, and could legalise them on both sides of the Atlantic.

“Talks in the Transatlantic Economic Council (TEC) are the current push for software patents. The US want to eliminate the higher standards of the European Patent Convention. The bilateral agenda is dictated by multinationals gathered in the Transatlantic Economic Business Dialogue (TABD). When you have a look who is in the Executive Board of the TABD, you find not a single European SME in there”, says Benjamin Henrion, a Brussels based patent policy specialist.

TEC which comprises EU and US high level representatives put a substantive harmonisation of patent law on its agenda. Substantive patent law covers what is patentable or not. The attempt to impose the low US standards on Europe via the Substantive Patent Law Treaty (SPLT) process utterly failed at the World Intellectual Property Organisation. Also progress in the WIPO B+ subgroup (without developing nations) could not be reached. Now the TEC is used as a new forum to push forward with lowering patentability standards through the back door. The TEC is a closed process, and sits outside the WIPO multilateral treaty talks. Since WIPO participants Brazil, India, and China began to fight EU-US proposals for ever more aggressive patents, the EU and US have begun their own bilateral talks.

The main difference is that the TEC is a trade process. The use of free trade talks to change patent laws has precedence. In the GATT negotiations the United States diverted a Free Trade process to blackmail trade partners to accept the TRIPs treaty that limited flexibilities of their national patent law.

In 2005, the EU Parliament did not want to make software patents enforcable in Europe after massive opposition from citizens, small European software businesses, parliamentarians of all sides, and civil society. The United States and US stakeholders intervened without success in internal matters of the EU in favour of software patents. In the same year the Indian parliament resisted the US pressure to change its patent laws. The US diplomacy insisted in India on alleged TRIPs obligations to permit software patenting.

Commissioner McCreevy’s home constituency, Ireland, is the main base in Europe for large US software firms. They redress much of their EU profits as patent licenses and royalties, for which they do not have to pay taxes in Ireland (and therefore in Europe). In his former government office, Mr. McCreevy built the Irish tax-free harbour.

FFII President Alberto Barrionuevo adds: “The European Union does not have a Community Patent, neither a substantive patent law in its acquis, except the biotech directive. As long as there is no substantive patent law in the EU, it is quite silly to discuss about a bilateral patent treaty with the United States. Its like a blind showing the way for a deaf. If the USA really wanted to fix their patent practice they should first switch to first-to-file and join the European Patent Convention.”

Meanwhile, according to reliable sources within the EU, a confidential and dedicated Working Group inside the European Council of Ministers has been created to discuss this proposed patent treaty. The agenda and terms are put forward by the United States whose patent law does not meet European standards.

Background Information

Agenda TEC meeting objectives for 13 May:

  • “Patent Law Harmonization: Agree on roadmap.”

The White House: Framework for Advancing Transatlantic Economic Integration Between the United States of America and the European Union:

  • “Cooperate on improving the efficiency and the effectiveness of the patent system at the global level to promote innovation, employment, and competitiveness, and seek progress in the harmonisation of the different patent regimes;”

TABD: Transatlantic Business Recommendations for Action by Transatlantic Economic Council:

  • Patent Law Harmonization: The TEC work program needs to specify the step-by-step plan proposed for progress on convergence of US and EU patent regulation. We understand that the US put forward a roadmap proposal at the end of January, but it is not clear what, if any, are the agreed milestones for the roadmap going forward.

The draft treaty (doc) indicates that an old tactic from the rejected software patent directive is tried again. The draft’s conditions for patentability state [a] claimed invention shall involve an inventive step. It shall be considered to involve an inventive step (be non-obvious) if, having regard to the prior art as defined in Article 8, the claimed invention as a whole would not have been obvious to a person skilled in the art at the priority date of the claimed invention.

As we explained in the past, the phrase claimed invention as a whole is quite devious in this context. The reason is that when you have a software patent, you (almost) always claim this as “a computer running <new algorithm>”. Now, a computer is patentable subject matter but not inventive, and the software is not patentable subject matter but inventive. By allowing the claims as a whole to be used for fulfilling the inventive step rather than only the patentable subject matter in it, the inventiveness of the new software can fulfill this criterium.



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About FFII

The FFII is a not-for-profit association, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 1,000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights in data processing.

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