Working breakfast on Community Patent

Here’s a report from a breakfast meeting I was at yesterday on the topic of SMEs and the Community Patent. There were 50 seats, all full. The speakers included representatives from the Commission, the Parliament, and the Slovenian EU Presidency.

The most interesting part was the speech by a Director of the European Commission. She talked about its possible adoption, the motivations, translations, and she responded to my question about software patents. (Each topic has a section title if you want to skip some parts.)

Possible adoption

About the possible adoption of this proposal, she talked about this being one final attempt. The question of how realistic this proposal is is an important one since the EC have been making proposals on this since 1962 without success. She said that only one country is still openly opposed to the current proposal: Spain. France is not supporting the proposal, but that’s only because they’re not willing to start an open conflict with Spain. So if Spain can be convinced to change their position, then agreement could be possible quite soon. Me, I hope Spain continues to block this until all the problems are fixed.


On motivations, she gave an example of an unnamed large European tyre manufacturer. I’ll paraphrase slightly. This manufacturer applied for patents in it’s core markets which were the UK, Italy, France, and Germany. Then they heard that a shipment of tyres was to arrive in Antwerp and that those tyres used the patented idea. The European tyre manufacturer phoned the Belgian authorities and asked them to stop the shipment in Antwerp, but the Belgian authorities refused. The allegedly infringed patent didn’t exist in Belgium. It only existed in the UK, Italy, France, and Germany. The arrival of the tyres in Belgium might not be a big problem (given that Belgium isn’t a core market for them), but because the EU has reduced borders, these tyres could easily be transported into the UK, Italy, France, or Germany.

I don’t have a position on the patentability of tyres, but this example is interesting because it’s quite easy to understand. When we’re making proposals for how to avoid harming software developers, we have to keep in mind what the possible legitimate goals of the legislation are. That allows us to make proposals that face less resistance.

Another interesting point is that when telling the tyre story, she kept referring to this as "counterfeiting". I’m not sure if that was just an accidental wrong choice of word or if this is a hint at a plan to link the ideas of patent infringement and counterfeiting, or even a plan to broaden the definition of "counterfeiting".


On translations, she said most countries were now satisfied with the proposal to have patents only in English, French, and German. Unofficial automated translations would be provided in the other languages of the EU. She acknowledge the general low quality of automated translations but said that the EPO had now developed some amazing new software for automated translations.

This made me think of a comment about ODF and OOXML compatibility: To sway votes, it doesn’t have to be technically possible, it just has to be politically possible. Heh.

Software patents question

At question time, I asked: When I talk to SMEs in the field of software, they say they want fewer or no software patents. We have to remember that every patent is a regulation. Every patent is bureaucracy. The software patents that exist today, although dubiously legal, are making product development difficult. They are particularly problematic when they block the use of a standard, thus prevent others from writing useful software. Wouldn’t a faster, cheaper system worsen the current problem in those fields?

Of the six questions asked, the moderator picked this question out as the most interesting. He was an MEP, so it was nice to see this issue still touches a nerve – even moreso because he was a pro-swpat MEP (or was in 2005 at least).

The Commission speaker’s reply was that the Community Patent doesn’t aim to encourage more patents, weaker patents, or an increase of wrongly-granted patents – but she didn’t explain how it wouldn’t. She did say that being EU-wide, it would be easier to overturn wrongly-granted patents since they would only have to be overturned once instead of in every Member State. She also said that by making the granting process faster, the period of uncertainty would be reduced.

Those two points are not wrong, but they’re help is not so great, and they definitely wouldn’t cancel out the problems caused by the increased number of patents (which is inevitable if the process is faster, cheaper).

When talking about software patents, she constantly called them "wrongly granted" patents or "disguised software patents". This is consistent with the European Commission’s position that software patents are not valid, but "computer implemented inventions" are valid. In reality, the latter is just a vague term which includes software patents. The European Commission’s use of these funny terms and definitions makes meaningful dialogue difficult.

Asking a question won’t have an immediate effect. Commission and Parliament speakers are ready for these questions. The point is that they have to be reminded constantly that we’re still here, the problem is still here, and we still want a solution. If you’re at such a meeting and no one else raises the issue of software patents or free software, you have to ask a question. It’s also good practice. Asking questions is the best way to get good at asking good questions :-)


Aside from the above points, she mentioned in passing that the London Protocol had made progress and that France had now ratified it, and said that she hoped this would encourage others to also ratify it.

She also positioned the Community Patent as something that is meant to help the little guy. She went as far to say that Big Business is trying to stall the Community Patent behind the scenes – saying that Big Business doesn’t want SMEs to have access to the patent system. She said the European Commission isn’t changing the Community Patent in ways Big Business is asking for – "Big Business can take care of itself". This sort of talk is to be expected, given that it was an SME breakfast, but I thought it was interesting to note that this is how they’re promoting it.

There was no mention of the issue of having a central court, and how impartial the judges would be, and how to avoid the EPO (the executive power) having power over the court (the judicial power). Maintaining this separation of powers is important.

Well, without getting too long, that’s the summary of my notes. Probably the best way to ask questions would be to raise them on FSFE’s discussion mailing list. And there’s more information about software patents FSFE’s Software Patents page.

In related news, FFII published a very interesting press release on another software patents topic yesterday: "McCreevy wants to legalise Software Patents via a US-EU patent treaty".

Ciarán O’Riordan,
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