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Propuesta elaborada por ATI acerca de los proyectos de legislación europea sobre Patentabilidad del Software, para su discusión por CEPIS (Council of European Professional Informatics Societies)


An ATI proposal for action Versión en español / English versionVersión en español


The development of computer programs also called computer implemented inventions requires considerable human, technical and financial resources. However, such programs or inventions can be copied at a fraction of the cost needed for their development and are not clearly protected in all European Union Member States by present legislation. Protection, where it exists, has different attributes. These differences have a negative effect on the common market with regard to a fundamentally important technology.

Knowledge is expensive to produce but cheap to reproduce, just the reverse of what happens with material goods. Marshall observed long ago, that nature is subject to decreasing yields while man to increasing ones. What really is under discussion, is the innovation and generation of knowledge that is at the heart of the debate. This is the core engine of all the economy of knowledge.

Patent and copyright protections are complementary. In very general terms, patents protect new technical ideas and principles, while copyright protects the form of expression used. For example, a patent might protect a new sort of paper, while the printed content of a newspaper would be protected by copyright. In computer terms, the actual code (whether machine-readable or in a form which is intelligible to human readers) would be subject to copyright protection, while underlying technological ideas may be eligible for patent protection.

On the other hand, a computer program will be accorded copyright protection where the form of expression is original in the sense of being the author's own intellectual creation. Third parties would not be able to produce substantially the same content material as the original author has produced, even if they used different technical principles to do so. But the third party will be able to use, copy, adapt, or rework such a program paying the corresponding royalty.

Accordingly, the same program may be protected by both patent and by copyright law. That protection may be cumulative only in the sense that an act involving exploitation of a particular program may infringe both the copyrights in the code and a patent whose claims cover the underlying ideas and principles of the invention using the program.

Current Computer software protection in Europe

Computer software has been traditionally protected in the European countries through copyright. In fact European law forbids explicitly patents on computer software. The European Patent Convention (EPC) says that patents should not be granted for computer programs as such. However computers are themselves machines like other technological devices. Over the years, national courts have decided that there is no reason why a patent should not be granted for a machine programmed to carry out some technical function, or a technical process carried out using a computer or similar machine. But in common with all other inventions, it still needs to be new and not obvious.

It is important to notice that the EPC affects to its 26 member states and 5 so-called extending states. The European Patent Office (EPO), being a result of the EPC, is not an European Union institution, and therefore not bound by a EU directive. However, being all EU countries (and also EU candidates) members of the EPC, a directive on software patents would, of course, affect largely to the actuation and practices of the EPO.

While in general Copyright gives the holder, among other rights, the right to perceive a royalty for the copy or use of his work, but not the right to prevent its use or copy if he received the royalty payment, Patent law gives the holder of a patent for a computer-implemented invention the right to prevent third parties from using software incorporating any new technology he has invented (as defined by the patent claims).

The European Patent proposal and software innovation

Here is where lies the big problem with the initiative of the European Commission of a proposal of a directive for patents for computer-implemented inventions which necessarily will prevent the possibilities of increase of innovation by European companies and citizens in the field of Information technologies, particularly in the field of computer software.

There is an absolute lack of a global knowledge, duly organised about the techniques and technologies available and in the public domain on computer software. The state of the art is normally well known, but there is not a single database that covers all the patents already granted both by the European Patent Office and by the U.S. Patent Office and other countries equivalent in the field of computer software. Consequently the Patent Offices of the different countries and the patent applicants are before an enormous difficulty to find specifics about the prior art, even if it exists, so there is no guarantee that a patent will not be granted to program already existing. But what is worse, any computer program developer might find himself that he is breaking a patent without knowing that fact, and worse yet he might be prevented the exploitation of his own work and the progress of his own technology.

The intellectual nature of computer software and its equivalent of computer implemented inventions puts a big difficulty in accepting the use of the present day patent rights for its protection. Either the use of copyright is continued or a totally new concept of law of patents where the monopoly of exploitation is not granted should be developed.

In summary, the European Comission is proposing a new directive that, despite the claims by its supporters, will introduce software patents in Europe, in terms very similar to those in the US. This introduction is being taken without the affected paties being informed, and without promoting campaigns to show all the benefits and problems it could introduce, in a balanced way. And of course, without letting all these parties (specially including IT professionals and IT-related SMEs) give their informed opinion about the matter.

How the Patent Directive affects informatics professionals

The directive proposal about software patents is probably the single largest change in the regulation of the European software industry since its birth. The impact on the IT professionals in case it is finally approved would not be neglectible for several reasons:

  • To start with, IT professionals have little to gain from it. In our professional environment, it is really rare that a single person asks for a patent. In most cases, companies ask for patents related to the developments made by their employees. From a selfish point of view, patents show no gain fro most of us.
  • From a more general point of view, software patents would cause a shift in influence and importance from IT professionals to industrial propierty specialists. Now, when developing a new software product, engineers are one of the most influencial parties. In case software patents enter the game, even before an engineer can start working on a project, a lawyer should study the field, doing patent studies and searchs. Any work done should also be validadeted by patent specialists. IT professionals would no longer be able to decide which trecnology is better fro a product just in terms of technical and economical factors. The opinion of lawyers (for instance, in terms of exposition to patent lawsuits) would be of great importance too.
  • IT professionals are the best qualified to judge about the influence of software patents on IT innovation. Now thediscussion about the convenience of software patents is mainly in the hands of lawyers (although fortunately more and more engineers are entering the field), who are deciding what we will be able to do in the next years in our everyday work. We should be at least helping to shape our future as professionals. Also, we should be expalining the society the implications of these meauseres in the general returns from the IT industry, its rate of development, and in general the balance between what the society needs in terms of innovation and new products, and what it losses when gives commercial monopolies on technologies.
All in all, IT professionals will be affected in our daily work, with little to gain, and seeing at the very least several problems for us as professionals, and for the general good of society. In addition, and despite the opinion we may have about the matter, we should not let this decissions be taken without our input being taken into account.

Proposal for action

There are several possible actions to be followed, in case CEPIS wants to be an active actor in this debate in Europe. Find below some proposals:

  • Discuss the issue in all national organizations. In most European countries, despite the deep impact that the current developements about software patents could have on the IT professionals, there is little concern about those issues. Informing professionals, companies and administrations at the national level, and participating in the decission making about this issue should be top priority for CEPIS national members.
  • Launch a CEPIS working group on the matter, with the aim of coordiantiong actions and wrting a report on the matter.
  • Join, coordinate with or support European-level campaigns for informing decision makers of the problems that software patents would introduce in the European IT landscape.
  • Decide on a declaration to be aproved by CEPIS and national organizations with respect to the matter. Publish this declaration and inform about it to political instances and media. The declarations by ATI could be used as a draft.
  • Lobby both at the European Co9mission level (specially DG-INFO and DG-Competition) and at the European Parliament level. Such a change in the legal framework of the software industry should not be taken without hearing (and taking into account) the opinions of the European IT professionals. Try to join (or help to create, in case they do not exist) working groups on this matter, both at the European and at the national levels.
  • Try to inform IT-related SMEs organizations of the problems of the directive proposal. SMEs are probably the most damaged party in case the directive is approved as it is now. Try to coordinate efforts with them.

References (sites with information about software patents)

- Group on software patents of FFII. Probably the best compiled information about software patents and the process of the directive proposal on software patents. Also, information about the campaigns against software patents in Germany and at the European level (English, German, French and partially other languages): <>

- EuroLinux Petition for a Europe free of software patents. More than 130,000 signatures against software patents in Europe (several languages): <>

- SoftwarePatenter. Information about software patents and the campaigns in Nordic countries against the direvtive proposal (Danish): <>

- ProInnova. Infomration about software patents and the campaigns in Spain against software patents (Spanish): <>

- Group on software patents fo Caliu. Information about software patents and the campaigns in Catalonia and at the European level (Catalonian): <>

- Section on software patentes of the LPF. Information about software patents and the situation in the United States (English): <>

- FreePatents. News and reports on the situation of software patents in Europe (English): <>

References (selected information about some specific topics)

- Detailed analysis of the directive proposal on software patents. Includes the verbatim text of the directive proposal, comments on it, and a proposal for an alternative wording which would put software outside the scope fo patentabiliy (English, German, French): <>

- Petition (call for action) by FFII, related to the directive proposal and signed by several organizations and personalities (Enlgish and several other langauges): <>

- "11 Questions on software patentabily issues in Europe and the US", by Philippe Aigrain. A short text answering the most common questions about software patents (English): <>

- "Software Useright: Solving Inconsistencies of Software Patents", by Jean Paul Smets. An "all in one" paper on software patents, including legal, economical, technical and bussiness aspects (English): <>

- "European Software Patents: Assorted Examples". A selection of software patents already granted by the European Patent Office (and probably illegal, according to the European Patent Convention), which would (probably) become legal in case the directive proposal becomes directive with the current wording (English): <>

- "Sequential Innovation, Patents, and Imitation", by James Bessen, Eric Maskin (MIT y Harvard). One of the few detailed and deep studies on economics of software patents (and other similar patents) (English): <>

- News related to software patents (English, German and other languages): <>

April, 2003

Última actualización: 14 de abril de 2003
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