Tonnerre Lombard

FFII’s coordinator for Switzerland

EU commission takes another shot at software patents

After their failure to introduce software patents in Europe directly through two directives, then through the community patent and then finally through the «European Patent Litigation Agreement» (EPLA), the European Commission has come up with a new way to legalize software patents: the «United Patent Litigation System» (UPLS).

The proposal displays a vast amount of similarity with the EPLA, except that the highest instance is moved to a specialized patent court. Instead of judges, this court is run by «patent judges», who, just like in the EPLA, do not have a legal degree but are only trained by the European Patent Office. The European Court of Justice (ECJ) has no role to play in this and no right to review the decisions of the patent court.

This is another attempt of the patent system to move all control over patents and their applicability to the participants.

Why software should not be patentable

The big problem with regard to software patents is the question of invested effort. The whole debate about software patents usually evolves around the question whether or not copyright is a sufficient protection for software. In my opinion it is, which can be shown very easily:

  1. First you have an idea. This costs you nothing.
  2. Then you sit down and invest work in an implementation of your idea. This implementation is fully covered by copyright, and is your first real investment into the idea.

Surely, anybody could look at your product and clone it, but that requires that person to start at step 2 and re-do your entire investment in implementing the idea. Thus, this person has no competitive advantage of taking your idea. The investment software patents protect is essentially zero. This is a large difference from developing e.g. a machine, where a lot of material is usually invested into prototypes.

At the same time, the impact is not: software patents would forbid the competitor to implement his own variant of your idea. The idea is essentially monopolized, and the cost is carried by the community.