Current Situation

Already in late 2005, the patent officials of the European Commission took new initiatives which, if successful, would have the effect of making software patents enforcable throughout Europe and removing the patent system even further from any democratic control.

In january 2006, FFII vice president Hartmut Pilch answered a question by the press: Does the Community Patent restart the debate over patents for computer-implemented inventions (software patents)? Why or why not?

"It restarts the push for software patents, without a debate. But there wasn't much of a debate during the past two pushes either.

The term "CII" was a propaganda term, designed to avoid a debate. Anyone who uses this term implicitely agrees that computer programs, when described in the language of patent claims, can qualify as "inventions" under Art 52 of the European Patent Convention (EPC) and are therefore patentable subject matter (which said article says they are not).

In 1999-2000, there was a debate. The Commission and EPO proposed that software and business method patents are needed in Europe, and for that reason the law (European Patent Convention) must be changed. The proponents lost the debate. That was round 1 of the European software patent struggle.

Then came round 2 with the term "CII" in the title of a directive proposal. Anyone who quoted the title had to agree to the underlying assumption. That way they thought they could win without a debate, but they failed again.

Now comes round 3. It started in July 2005, when the proponents of software patentability agreed to drop the directive and push for the Community Patent instead. Just as in November 2000, when they agreed to drop the EPC revision plan and push for a wordplay directive instead.

The Community Patent plan doesn't even mention the subject of software, although, make no mistake about it, software patentability is one of the main drivers of these plans.

Instead of directly imposing software patentability, the proposal is now to remove the patent system even further from legislative review by any democratically elected parliament. Thus in effect legislative power is handed over to a few top judges and to the circle of administrative officials that is running the European Patent Office and the EU Council's patent policy working party. There are even moves to explicitly make EPO case law binding on the new EU patent institutions. Of course all this goes without mentioning the word "software" or "computer", but the underlying issue is clearly understood.

The Community Patent has failed for 25 years due to resistance from many quarters within the patent lobby itself. If now suddenly this resistance can be overcome, there isn't much need to explain what is the driving force that is overcoming it."

In the ensuing months it became clear that the patent establishment was pushing for a multinational treaty called "European Patent Litigation Agreement". This agreement puts the very people who run the European Patent Office into control of a new European institution which is, like the European Patent Office, not subject to democratic control by elected lawmakers and, unlike the Community Patent, not even part of the European Union. Click here to read about the plans for a European Patent Litigation Agreement