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Erik Josefsson on European Patent Situation
By jonas, Section News
Posted on Wed Feb 20th, 2002 at 19:04:16 GMT
Erik Josefsson har written in to GNU-Friends with some information about the current patent situation in Europe, in light of the recent press releases issued by the EuroLinux Alliance.


Hi everybody.

I'm sorry that I can not digest the present patent situation in Europe into a neat news item so I will have to ask you to read through some links.

First. Today the European Commission has published a directive proposal that seems to be written by a BSA patent expert.

  • http://petition.eurolinux.org/pr/pr17.html?LANG=en
  • http://swpat.ffii.org/vreji/papri/eubsa-swpat0202/

Along with the directive proposal a PR and a FAQ is presented. The PR is contradictory to the proposal and the FAQ can not reasonably contain any questions from the public. The closure of the Comission is again confirmed.

  • dir: http://www.europa.eu.int/comm/internal_market/en/indprop/index.htm
  • pdf: http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92en.pdf
  • pr: http://www.europa.eu.int/comm/internal_market/en/indprop/02-277.htm
  • faq: http://www.europa.eu.int/comm/internal_market/en/indprop/02-32.htm

No reaction has been recorded from the warning by EuroLinux a couple of days ago, nor has "the real questions" been adressed.

  • http://www.eurolinux.org/news/warn01C/

The >100k signatures of the petition is equally marginalized in far off linked documents and encapsulated in a text that says that even if there were many signatures, the economic majority of the software industry wants patents. Compare:

  • http://petition.eurolinux.org/
  • http://europa.eu.int/comm/internal_market/en/indprop/softanalyse.pdf

Meanwhile the juridical govermental bodies (like Justitieministeriet in Sweden) does not understand that "the need for harmonisation" has been forced upon them by the illegal practice of the EPO. In their understanding EPO practice is by default in accordance with national law until the opposite has been proved in court. They are kind of lagging behind - and in practice they are not controlling the EPO as they are supposed to. A minor text by me on this:

  • http://swpat.ffii.org/stidi/epc52/udgor/

and some irony on "as such" can be found here:

  • http://swpat.ffii.org/stidi/epc52/moses/indexen.html

Now - all this legal argumentation will be in vain if there is new law coming up through this directive. We will have to accept taxation on information exchange by multinationals through patent law:

  • http://petition.eurolinux.org/pr/pr18.html?LANG=en
Please read even more in the appended letter from Hartmut Pilch, and please don't expect anything to happen by itself.


Paris, Munich, 2002-20-02 - The European Commission has just published a press release on software patents, as well as a directive. Its content is is, apart from a few minor wording differences, exactly the same as the BSA document EuroLinux obtained last week. However, the document of the directive is incomplete. All the arguments which allows to decide whether this directive is legal or not according to the Rome Treaty have disappeared. The press release also contains many sentences which are contradictory with the content of the directive.

A detailed analysis has been published by Eurolinux at


where also the original EC/BSA draft itself can be found:

http://swpat.ffii.org/vreji/papri/eubsa-swpat0202/proposal.pdf http://swpat.ffii.org/vreji/papri/eubsa-swpat0202/proposal.doc

In particular, the commission uses a 1998 BSA report to justify the directive. This BSA report contains no arguments related to patents!

Also, the Commission has neglected official reports in France and Germany which show the negative impact of patents on innovation and also show that copyright is the prefered protection of SMEs for the software economy.

The directive fails to define what is technical. It considers software to be technical. Therefore, this directive allows to patent anything innovative implemented with software, including business methods.

In fact, the directive goes even further than that.  It removes the concept of 'patentable inventions' from the European patent system, deciding instead that any "computer-implemented" idea per se "belongs to a field of technology" and is therefore a patentable invention.  It legalises more than 30000 patents on trivial computing and business ideas already granted by the EPO under this regime.  The only question where it deviates from EPO practise is that of the claim form (see our explanations in the Eurolinux Warning).  However, even here the directive is worse than we thought: it contains a loophole through which computer programs can nonetheless be claimed as "computer program products", and it does not explicitely disallow program claims.

We urge everyone to read carfully the directive rather than the press release. The press release contains many sentences which say the exact opposite of what is actually written in the directive.  This directive is not a moderate compromise proposal but a rare piece of patent extremism.

A press release showing how the EC colluded with BSA to produce this extremist piece is available at


A press release showing how software patents are going to be implemented in Europe on the MPEG4 standard to everyone pay 0.02 EUR per hour of digital video streamed on the Internet is available at


EuroLinux Alliance

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