Really no software patents in EU?

I often hear, mostly from comments in online forums, that there are no software patents (yet) in the EU.

I wish it was so, but I am not convinced of this. I thought that, though the EU has not yet decided on a software patent policy, that left various country-specific software patent policies in place. So isn’t it true that there currently are software patents in some EU countries?

If there are no software patents in the EU, why does Thompson list several EU country-specific MP3 patents, and what’s the explanation for cases such as this:

Polizei sucht auf der CeBIT Produktpiraten: Apparently, a couple of days ago, German police raided 10 stands at CeBIT, confiscating digital cameras, navigation devices, mobile phones, and music players, on behalf of a company called Sisvel who claim that their MP3 patents are being violated. They did the same thing to SanDisk at IFA. Presumably this will show up on English-speaking sites soon.

8 thoughts on “Really no software patents in EU?

  1. There definitely are software patents in the EU.

    There are a number of reasons why this is so. First, EPO and per-state policy has changed over the years, and it’s actually stricter now than it has been in the past: that doesn’t mean that they re-evaluate old patents against the new rules, though it does mean the old patents are probably more difficult to defend in court.

    Second, the law hasn’t been clarified properly, and there is still a bit of a grey area. While it’s more difficult to patent a software process, the fact that something can be done in software doesn’t mean it’s unpatentable, if that makes sense. So, MP3 might be a reasonable example: one of the patents there (I don’t think it’s one of the ones on your list, though) was the basic compression method: quantizing the data in a such a way that humans notice as little difference in the output as possible. There are very few anti-software patent laws that can defeat it, because it’s actually talking about a physical phenomena (different sounds waves that sound very similar to humans). The fact that it’s done in software isn’t really here or there.

    I think right now, though, it’s a. difficult to get a software patent (you have to express it in terms of a physical or technical problem to be solved, which wouldn’t cover things which are simply information processing), and b. it’s more difficult to defend them. Overall, we have it pretty good in the EU at the moment.

  2. Exactly. We have patents, there are just not about software. MP3 patent is very good example of something that can theoretically be _applied_ in software, but its not the application that is patented, its the technique in a more general way.

    More importantly, we do have a very specific european laws that are anti-software-patents.
    “the law of interoperability” .. which sort of means that a competitor has the right to make a product that interoperates with another product.

    Off course, even with MP3 patent being legal there seems to be some contradiction here and until a court specifies the exact conditions the outcome of such a trial is unknown.

    My guess however, would be that MP3 playback and encoding would be legal (without paying patent dues) _if_ the same application also provides their own superior or equally effective alternative.

    So a linux desktop playing MP3 would not be a problem, if it also plays and prefers OGG files. The linux desktop is not being competitive in this case by _stealing_ technology, they are just being compatible. If it didn’t offer such a technical alternative than they would be giving away somebody else’s technology, instead of being ‘just’ compatible.

    However, like I said. This is just my guess about how a court would weigh these two contradicting laws against each other. Until its exactly tried in court, we will never know.

    There is another contradicting law that really only concerns opensource. Its the principle law of free speech. Even if for a certain type of application a real-life patent (not a software patent) would be considered applicable, then only the distribution of binaries and their usage would violate such a patent. The source-code and information on ‘how’ it works, can always be legally distributed. So, say, Gentoo would always be in the clear, since they just distribute the source.

    You also notice this trick with css support in linux. It is distributed, even in Ubuntu, as source-code. The user himself needs to compile. And, with that action, they would be breaking the law in the USA, because of the DMCA. Even now, under the DMCA, its legal for an American company to sell t-shirt with the DeCSS source code on it. Fortunately, in Europe DeCSS falls under interoperability and fair-use. Its not illegal to hack around protection.

    I’ve also seen this trick with encryption. Several years ago, PGP (pretty-good-privacy) couldn’t distribute its software out of the USA, because encryption is considered to be a weapon. So, they printed the source-code and under the flag of free speech shipped the source code to Denmark (i think), scanned it back in, and compiled and distributed it from there.

    Lastly, even if a patent would be legal within Europe. You need lots of cash, lots of local lawyers and lots of people-that-actually-have-money to sue. Opensource would be pretty much in the clear, because they are not _selling_ the software. They do not own the software. You can’t sue Canonical for any part of the source-code that perhaps breaks a law. They are only distributing public-domain stuff. They liability is comparable to say Google or YouTube. They are not automatically complicit in any illegal way their system is used. My point just being, that without a specific law governing software patents, they are, at least in opensource, pretty much impossible to enforce. You have to have a lot of money, and a lot of friends.

    More importantly, Linux has one strategic partner, even if sued in the US. IBM holds more patents than any other software-company. And they could pretty much destroy the whole IT market, making any product anywhere impossible to sell. Its like the cold war. Microsoft, for example, would never really sue any linux distributor about patents or IBM would make them pull their products out of the store. So, like the cold war, the power blocks don’t really fight a direct war, they find a war by proxy. The Vietnam war is like SCO vs Linux.

  3. As the status of software patents in EU is a bit unclear, wouldn’t the perception that the general public and / or the software industry has about it matter in trial ?
    If that so, isn’t actually a good idea to say that “basically, software patents aren’t valid in EU”, in order to reinforce this perception ?

  4. In Sweden, software patents are specifically disallowed by law, but the buffoons at the patent office grant them anyway.

  5. Alex: “There are very few anti-software patent laws that can defeat it, because it’s actually talking about a physical phenomena (different sounds waves that sound very similar to humans). The fact that it’s done in software isn’t really here or there.”

    Meneer R: “MP3 patent is very good example of something that can theoretically be _applied_ in software, but its not the application that is patented, its the technique in a more general way.”

    What you’re saying here, taking Alex’s account into consideration, is that the MP3 patent covers physics or mathematics; but these are things which absolutely should not be patentable. Johan sums it up best, but I’ll add a few words: the patent office people gladly take money and issue patents on things which shouldn’t be patentable, ignoring the agreements and legislation which supposedly governs their activities; with a compliant enough law enforcement regime, the patent owners make a lot of trouble; if common sense prevails, a judge effectively tears up the piece of paper (as recently happened in the UK).

    What we need is for the lawmakers to draw the line, excluding software and nature from patentability whilst bringing the patent issuers to heel (and not in the European Commission and European Patent Office “let’s have a unified patent system whilst serving our corporate masters, er, promoting innovation” pretend sense, either). Companies who demand that alleged patent infringement (for de-facto invalid patents) be elevated to criminal investigations along with all the trappings of police raids, confiscations and the like (whether that is because the law in a place stupidly defines essentially such civil “wrongdoing” as criminal acts) should themselves be prosecuted as organised criminals, in my opinion.

  6. Yes, I’d like to see wilful abuse of the patents system be illegal, with financial penalties proportional to the business lost or gained. Ballmer should be the first.

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