Germany to Vote Against Software Patents in the EU

YKW writes "According to Ars Technica, Germany has decided to vote against all changes to current European patent laws. In a statement given to demonstrators in Germany, Federal Department of Justice Minsterial Director Elmar Hucko read the riot act to the EC: 'Under no circumstances do we want American procedures in Europe, Hucko vowed with regard to the US patent process. A patent must be "a fair reward for a bona fide invention and not abused as a strategy to bludgeon competitors.' With the largest EU member against software patents and French IT leaders lobbying their goverment to vote against them too, Europe might be saved from software patents. At least for a while. An older Slashdot article about software patents in Europe is here."

Comments

Re:Hm, interesting...

[timeOday]

you need to know that the entire European Union is much larger than the United States, both in population and economy.

Population, yes, economny, no:

EU GDP: 11.50 trillion Pop: 454,900,000
US GDP: 10.40 trillion Pop: 290,343,000

Sure a trillion more is a lot in absolute terms, but it's only 10%.

Anyways in this case it might be more relavant to define a "software GDP," and for now I think the US would be #1 in that dept.

If the EU does resist software patents, it should be interesting to watch: will monetizing every little idea create more value for US companies and keep them in the lead, or will the increased freedom in the EU lead to products that integrate all the best features, leading to EU dominance? And does Microsoft even care, since they can easily buy any company with patents they want? Stay tuned...

Italy too?

[xlyz]

Italian Minister for Technological Innovation, that is not entitled to vote ( DOH! ), has strongly recommended his collegues partecipating to vote against as well

Re:Wakeup Call

[kompiluj]

Kinda strange, but DO YOU READ what you cite?
Quoting:
Last Wednesday Elmar Hucko, head of a government department in the Ministry of Justice, announced at an event in Berlin that the Federal Government would vote against the controversial software patent directive of the Council of Ministers of the European Union

WIPO/TRIPS actually FORBID software patents!

[Halo1]

suppose if Germany decides not to support the European Commission on changes in the law to software patents, then nobody can sway them otherwise because they are a sovereign state and don't have to comply with what the WIPO or the EC says.

First of all, as member of the EU, Germany has to comply with EU directives that are passed. Next, WIPO does not only not require software patents, it even forbids them (just like TRIPS).

The excuse used by software patent proponents regarding TRIPs, is article 27:

Patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step andare capable of industrial application.

This text however explicitly uses terms which are defined nowhere else in the treaty (like "invention", "field of technology" and "inventive step"), so that signing members can define these terms themselves in such a way that they fit best in their existing laws.

According to article 52 of the the European Patent Convention, a computer program can never constitute an invention. And in the Parliament proposal of the directive, "field of technology" is defined in such a way that computer programs, maths, business methods etc do cannot belong to one (even if they're executed on a computer).

And on top of that, there's articles 7 TRIPs which is interpreted by the WTO as that the measures as implemented must ...

.. contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare

Most evidence points to the contrary as far as software patents are concerned.

So TRIPs does not require software patents, how does it forbid them?

Article 10 of the TRIPs treaty states:

Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).

As opposed to what a first reading would suggest, namely that this simply means that copyright protection must be available for computer programs, this article goes further. The WTO states on its website regarding article 10.1:

The obligation to protect computer programs as literary works means e.g. that only those limitations that are applicable to literary works may be applied to computer programs.

Since patent protection is unavailable for literary works, it can't be available for computer programs either according to TRIPs. Proponents of software patents often counter this using their interpretation of "computer program as such", which turns "computer programs with a further technical effect" into "computer-implemented inventions", which in turn would supposedly not be affected by this exclusion.

This interpretation is however invalid due to article 4 of the EU Software Copyright directive from 1991. This article states that a computer program as literary work includes the following (emphasis mine):

... the permanent or temporary reproduction of a computer program by any means and in any form, in part or in whole. Insofar as loading, displaying, running, transmission or storage ...

The WIPO Copyright Treaty also contains applicable clauses (article 10):

(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal expl