Software Patents Directive (“Thank you, Poland!”) Erik Josefsson Foundation for a Free Information Infrastructure Uniwersytet Jagielloński Intellectual property law international conference Krakow, 22 April, 2005

About FFII Pan-European non-profit association founded in 1999, representing 1,200 companies and 75,000 individuals Focussed on exclusion rights policy issues Promotes copyright, free competition and open standards

Expression of needs We rely on software copyright. We need to be sure that we own what we write. We need to be sure that we can publish and distribute our own programs. We need to be sure that, as long as we respect the rules of copyright, we can run any software on any office or network computer.

Directive history Feb 2002 – Commission proposal Dec 2002 – Report European Economic and Social Committee (ESC): Commission text “without sufficient consideration of the economic factors” Sep 2003 – First reading of the EP: follows ESC, SME and consumer organisations, many economic studies

EP achievements 2003 TRIPS/EPC connection Clear and effective limits Freedom of publication Interoperability

Council mess 2004 Legal uncertainty: “Computer programs are not patentable inventions” vs. “computer program on its own can be claimed” Rules based on dysfunctional EPO practice (“further technical effect”), no clarifying definitions No real interoperability safeguards Redefines “computer program as such” to “source code of one individual computer program”

Rethoric confusion 2005 ~ granted software patents in gauss database "Nothing that is not patentable now will be made patentable by the directive." Charlie McCREEVY, European Parliament Plenary Session, 8 March 2005

Rethoric confusion (2) "The Commission's intention in making its proposal was to avoid patenting of pure software and clearly differentiate the EU from the US." Charlie McCREEVY, European Parliament Plenary Session, 8 March 2005 Pending Estonia ( ) Microsoft Matsushita Samsung Alcatel Sony Siemens Canon Nokia Philips Broadcom Pending Poland ( ) Microsoft Samsung NEC Matsushita Canon Pioneer Ricoh Ntt Docomo TSE Sony

Rethoric confusion (3) "...the policy of the EPO... no patents on pure software (first point) no patents on business methods, and no patents on algorithms per se. I think that this is the three main messages that you should keep in mind” Alain Pompidou, President of the European Patent Office European Parliament information day 30 March 2005 EPO have granted (more than) 689 USPTO Class 705 Business Method Patents USPT O class 705 EPO class ??? equivalents

Patent example "Method of digital recording" a "digital recording device" provides data, stores data, defines data, copies data and deletes data, and the data is processed according to the instructions of the claimed computer program. EP (pending)

Council mess: Program claims Claim 1. A method of digital recording comprising: providing a playback file (34) for storing a stream of data(40); defining, within said playback file, a first section (51) to be recorded; copying a second section (35, 36) of said playback file to a new file (55) thereby providing an updated playback file (34'); deleting at least one section (541, 542)from said playback file thereby providing a record comprising said first section. Claim 20. A computer program which, when loaded and executed by a digital recording device, causes said digital recording device: to provide a playback file (34) for storing a stream of data (40); to define, within said playback file, a first section (51) to be recorded; to copy a second section (35, 36) of said playback file to a new file (55) thereby providing an updated playback file (34'); to delete at least one section (541, 542)from said playback file thereby providing a record comprising said first section.

Council mess: Program claims (2) Council Art. 4.1: "A computer program as such cannot constitute a patentable invention." EP : "[claim] 19. A computer program for executing a method according to any preceding claim."

Council mess: Program claims (3) Council Art. 5.2: "A claim to a computer program [...] when loaded and executed in a [...] programmable apparatus, put into force a product or process claimed in the same patent application EP : "[claim] 20. A computer program which, when loaded and executed by a digital recording device, causes said digital recording device: to [method of Claim 1]

Exclusion rights benchmarks cheap fast narrow safe expensive slow broad dangerous (to promote innovation)

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