This Council position confirms the existing practice of the European Patent Office, which has served European inventors and consumers well.
Is there any evidence that existing EPO patents are serving inventors and consumers well? How is a patent on "the progress bar" serving inventors or consumers well?
Some claim that patents are unnecessary and that copyright would suffice. In fact copyright protects the actual code in which software is written, but patentability protects the function, or action caused by the software. This functionality cannot be protected by copyright. Only patents can do that.
This is true. But allowing functionality to be patented will be an unmitigated disaster.
Computer Implemented Inventions are already patentable
But what is a computer implemented invention and how does it differ from a software patent? It's true hat the EPO already grants "software patents", but this is contrary to the fact that "software as such" may not be patented.
There is no evidence from our European experience that the system is failing or that damage is being caused.
Any evidence that the system is acceptable would be evidence against software patents since currently, software as such" are not validly patentable. This is evidence, however, that validating such patents would cause harm: e.g. the City of Munich's transition to Linux, the Bromcom patent, etc.
The draft Directive does not extend patentability
Because of the ambiguity in the draft, it would validate pure software patents. Currently these should not be patentable since "software as such" cannot be.
In the first reading, opponents of the Directive lead many MEPs to believe that the Directive would expand patentability and that this would represent a problem in future. Neither of these views is correct and neither can be supported by evidence.
See above.
The Commission was quite explicit about its desire to simply clarify and codify existing practice. We support this objective.
We oppose the EPO's existing practice allows stupid things to be patented. e.g. the progress bar.
The Directive will encourage innovators
The directive will expose innovators to risk.
A number of the amendments proposed by MEPs in the previous Parliament would alter the current system and tightly restrict the patentability of computer implemented inventions.
Fortunately yes.
Such restrictions would send a powerful signal to innovators in Europe; it would indicate that they should take their talent to the United States or other places where their inventions would be protected.
There's that point that makes no sense again. Why would going to the US make any difference? Software will get the same protection regardless of where it is developed.
Small and medium sized companies would be particularly damaged by a weakening of patent laws in the Union. Often under-resourced and small, these fledgling companies need all the protection they can get.
But if big companies get a proportionally bigger amount of protection (the reality if software becomes patentable) then the small and medium sized companies are net losers.
A brilliant invention with weak or no legal protection is likely to be stolen by larger or more established competitors.
Theft is a poor analogy for a patent violation. Patents are, after all, a monopoly the government gives to a company.
Investment would become easier as investors would know that the innovation they are supporting would continue to be protected and that the law supported the inventor.
Investors will be exposed to more risk if software is patentable.
Article 17 (2) of the Charter of Fundamental Rights states that intellectual property will be protected. We urge the Parliament not to compromise this important right.
Never heard of this. Anybody?
Here's the text of Article 17: Right to property
Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.
Intellectual property shall be protected.
-- RyanMeade
Inventions are patentable so long as they meet the four basic criteria of patentability: Industrial application (i.e. they can be used), technical character, that the invention is new and that an inventive step has been made. An invention therefore, even if implemented by a computer, is and should continue to be, patentable.
It would be very dangerous for this principle to apply accross the board; even if these four criteria were strictly applied, the net result would be harm to innovation in the software field. In any case, nothing in the EPO's practice suggests that they apply "new" or "inventive" step in any testing way. Again, what does "technical" actually mean?
Patent law must continue to be technologically neutral. This is a principle that European law has long upheld and must be upheld. There is no justification whatsoever for different standards to apply to different sectors
There is a qualitative difference between software and other "sectors". One example of a difference: software is written.
inventors working in the information technology sector should not be discriminated against. It would be unfair and unjustifiable.
As they would benefit from the absense of software patents, one could argue that it would be unfair... in their favour.
Weakening the Directive would damage Europe's international competitiveness
Just no.
Abolishing patentability would put Europe in the unique position of being the only advanced economy in the world where computer implemented inventions could not be patented. Our competitors in the United States, Japan, China, India and other places will continue to protect their innovators. European companies will be uniquely exposed, vulnerable and likely to have their best inventions stolen.
All companies will be equally exposed to whatever risks / protection exist in whatever market they distribute their products. THIS IS AN UTTERLY DISINGENOUS POINT.
The previous Parliament introduced some amendments that are frankly unfair and even incoherent. They discriminate against innovators in the technology sector and would create great legal uncertainty,
I'm not sure if we can argue that the ammendments are perfect. But they have to be better than the alternative.
An example of this "technological discrimination" from the first Reading is the amendment which states: "processing, handling and presentation of information do not belong to a technical field, even where technical devices are employed for such purposes" (amended Article 2b).
I guess this amendment is trying to patch up the damage that the ambiguity of "technical" is doing. Hardly ideal.
Another amendment states "data processing is not considered to be a field of technology within the meaning of patent law".
Same.
Finally in Article 3a of the previous Parliament's position, it states "innovations in the field of data processing are not considered to be inventions within the meaning of patent law".
Same. The problem is with "technical". The amendment is a weak solution to the inherit problems of the original text.
The previous Parliament's Article 6a would make it impossible for companies that develop new solutions to data communications to patent their inventions and would make many of the current patents worthless.
I believe the former to be a good thing, and the latter to be unforunate but, essentially, their own fault. Patents on "Software as such" are not currently valid. A company must take responsibility for its own actions.
The absence of a rational, fact-based and coherent logic underpinning certain of the proposed amendments is confusing and a source of worry for innovators. It means that small and medium sized companies will be unsure as to whether their inventions are and will continue to be protected; forces them to seek ongoing and expensive legal advice; creates a disincentive for investment; and damages confidence.
I think it should be easy: any software part of a thingy you want patented isn't covered by the patent. If your entire thingy is software, then it shouldn't receive patent protection anyway. This should be a relief, since you are protected from patent violation claims.
Europe is in the forefront of many technologies, our information technologies industry consists of thousands of innovative, dynamic and highly competitive companies producing thousands of products that make all of our lives easier and more rewarding.
Not an argument for or against software patents.
We sincerely urge the Council and Parliament to embrace the Political Agreement agreed in May this year. It is a reasonable compromise and deserves support.
It was never a compromise.