Fighting software patents at WIPO

At FSFE, we work in some committees of the World Intellectual Property Organisation (WIPO). From October 11-15, WIPO’s Standing Committee on the Law of Patents (SCP, for short) had its 15th session. We participate there because the committee discusses questions related to patents (duh) and standards. Our main goals in the committee are:

  • convince WIPO member states (that’s virtually every country in the world) and WIPO staff why software shouldn’t be patentable.
  • explain to member states and WIPO staff the relation between standards and patents from the perspective of Free Software, and make them understand how rules must be shaped so that their countries can get the most out of Free Software.

When you’re travelling to a WIPO session you often don’t know what you’re going go get during the week-long meeting. There is an agenda, but it tends to change as the meeting goes on. You also never know when, whether and how often you’ll be allowed to speak. Observers like FSFE have to cede priority to member states and international organisations.

This time round, we got lucky. The main topic of the meeting was an “Experts’ study on exclusions from patentable subject matter and exceptions and limitations to the rights“, prepared by a team of outside academics and led by Lionel Bently, an “IP law” professor at Cambridge, UK.

Looking at WIPO’s recent history, the fact that such studies exist in itself is something that FSFE helped achieve. When we started participating in the discussions on a Development Agenda for WIPO, the organisation was extremely inward-looking. It thought its job was to increase the reach and of copyright, patents and trademarks, and it was bound almost exclusively to the interests of rights holders.

We helped to change this by backing the Development Agenda. Adopted by WIPO in 2007, it binds the organisation to considering the views of all stakeholders in copyright, patents, trademarks and other monopolies on ideas, rather than just seeking to maximise benefits for rights holders.

This has led to some visible change in WIPO. In 2008, Carsten Fink was recruited from the World Bank to become WIPO’s Chief Economist. For the first time, the organisation started basing its rule making on empirical evidence and differentiated discussions, rather than “a definite perspective – that IP is good”,1 the viewpoint of former WIPO Director General Kamil Idris. (It’s worth noting that WIPO’s financial affairs during his tenure still make for entertaining gossip in the organisation’s hallways these days.)

Explaining software patents & standards

This week’s meeting of the SCP was mainly supposed to discuss the study prepared by Professor Bently and his team of experts, in particular the section on software. On the agenda was also further discussion of the relation between patents and standards. That’s a topic which FSFE has long been working on in various fora, including the European Commission and the Internet Governance Forum.

We got to make three statements. The first was a general statement, outlining FSFE’s viewpoint on the issues on the agenda. The next two were more detailed.

In our second statement, we talked about the relation between standards and patents. This has been a topic for the SCP for several sessions. We argue that software standards need to be implementable by anyone, whether in Free Software or otherwise. Free Software licenses don’t allow you to impose additional conditions on the person you give the software to. You can’t say “you’re free to use, study, share and improve the software, but when you pass it on, you have to pay for a patent license”. That’s why patents included in software standards need to be licensed royalty-free to anyone who implements the standard.

The third statement talked about excluding software from patentability. Professor Bently’s study discusses at some length the practice of the European Patent Office (EPO) to grant patents on software, even though this contravenes the letter and spirit of European law, namely the European Patent Convention’s Article 52, which says that software “as such” is not patentable. Our statement discusses this in some detail.

Such detail in fact that the EPO, which also has a seat in the WIPO plenary, felt compelled to make a rare intervention quoting EPC Article 52 that software should not be patented “as such”. To which I can only say that patening software as cakes or oranges would be a lot less problematic. A lot of member state delegations were very interested in what we had to say. Hardcopies of FSFE’s statement on patents were quickly snapped up.

After long deliberations in informal sessions, the committee finally gave itself a work program. Among other things, the committee will work on exclusions, exceptions and limitations to patenting. So we managed to keep the topic on the table, and will now have an opportunity to discuss the matter in greater detail. The committee’s next session is scheduled for May 2011.

Slow and steady

Working at WIPO takes time, money (prices in Switzerland make most foreigners weep) and, above all, persistence. FSFE’s involvement has wrought some changes over the years, and there’s more to come. When we get to explain our views in the plenary, we are after all speaking to 200-300 diplomats and specialist policy makers from around the world. You don’t get many opportunities to explain to such a crowd why software patents are a bad idea, or why patents in software standards must be licensed royalty-free and without restrictions on their use.

That’s why we do this work. It’s a very large lever, and takes a long time to pull. We don’t always have results to show right away, or even anytime soon. But looking back on the last five years, FSFE has clearly made a difference. And I can promise you that we’ll keep on making a difference, at WIPO and elsewhere.