Software patents in the banana-union (EU): short summary

Posted by hkwint on Mar 15, 2005 4:54 AM EDT
LXer; By Hans Kwint, The Netherlands
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Strange things happened in the EU recently. After about eight months of struggling, last Monday the Luxembourg Council Presidency claimed to have finally adopted a Common Position backed by a qualified majority about the software-patents-issue. However, the Foundation for a Free Information Infrastructure ( claims it appears that this majority does not exist and that there were multiple violations of procedural rules [1]. After trying to find out more about the issue, things get messier and messier, and more and more questions arise.So, what's happening here?

Where it's all about.

In the good oll' days, patents were only for touchable things, like a combustion-engine, and written content was protected by copyright.

However, in this modern times, it's also possible to apply for a patent for "computer-implemented invention": "an expression intended to cover claims which involve computers, computer networks or other conventional programmable apparatus whereby prima facie the novel features of the claimed invention are realised by means of a program or programs" (citing the European patent office [2]). As you immediately see, this is more language lawyers use, than language that could have come out of the mouth of some software-developer.

Till now, there weren't much laws in the EU however, that could cause this patents to be used to sue a company that, let's say, uses a double-click in its program, although the double-click is patented by Microsoft [3].

But that may have changed by the adoption of this Common Position, basically a political agreement between the ministers of the separate EU-countries.

Bill Gates: Oops!

Mainly, the comment on this new law, is software-development is becoming the terrain of lawyers instead of that of programmers , and the patents are only benificial to large companies [4].

Or, citing Bill Gates:

"If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today." [5].

This is because ideas instead of technologies are patented by big companies, and small companies can't affort the costs of asking for a patent. Nonetheless, such patents are granted very regulary, both by the USPTO, EPO, and Japanese patent office.

The actual soap of the software patents in the EU

Because since 1973 it was forbidden to patent software, companies started to patent process claims describing this software instead in 1986. The EPO noticed this ambiguity, and in 1998 invented a new method so software could be patented anyway. However, due to public resistance, this effort failed.

So, the directive was amended, and thereafter adopted by the EU. Now, it's the terrain of Legal Affairs Committee (JURI), which is dominated by MEPs with close affinity to the patent establishment, as the FFII says. Again, public resistance arose, and a compromise was reached, in which programs were still patentable.

On 18 May 2004, a political agreement between the EU ministers was reached about this compromise, but the majority was slim [6].

Strange bureaucracy

So, it seemed only some editing and translating had to be done to make this all formal. However, after that, 10 new countries entered the EU, and the majority changed in a minority. Because of that, some people asked for a restart the whole procedure due to the new composition of the EU, but this attempt didn't succeed.

Poland once voted against this compromise [7], and also governments from other countries like Germany, Portugal, Spain, The Netherlands and Denmark seemed to be against, so the thing was postponed many times.

To reopen the discussion, some of the named countries asked to make it a B-itme instead of the A-item it was. The difference is, an A-item is only a vote, non discussion item, but for B-items, there's the possibility for discussion.

The atempts of the named countries to make it a B-item failed for some technical bureaucratic reasons I can't understand (And I'm not the only one [8]). After that, it was even tried to adopt the A-item in a meeting for agriculture and fishery, though the link between cows, fishes and software-patents is not very obvious.

But, as stated, finally, after eight months, the issue was formally approved last week by the European Council (ministers).

Notably, it seemed there was a meeting in a backroom in which the ministers met. Possibly, the decision was already made before the public meeting [9].

More strange things

The Dutch parliament asked it's minister (Mr. Brinkhorst) to vote against the directive. But it seemed he didn't understand this motion, because after Denmark said in the meeting they'd like to ask for a B-item, Brinkhorst didn't offer support. Strangest about this is, the minute Brinkhorst spoke, isn't on the tape-recording for some reason, stunning the Dutch parliament.

When Mr. Bendtsen found out he'd get no support, he withdrew his request for the B-item, and the Luxembourg-presidency thus said the thing was adopted.

Now, ffii said there wasn't an official vote [10].

It's the question what the next story in this soap will be . However, since the European Parliament is in majority against this directive, a battle between the European Parliament and European Council may arise, also because battling between these two is a hobby of both ones, maybe.


Next, some interesting details, very informal, but still very interesting:

-The directorate of Internal Market, Charlie McCreevy is from Ireland [11]. Ireland used to be very poor, till they decided to drop taxes, in favour of big American companies like Microsoft. Now, Ireland is one of the wealthiest countries of the EU, since many big companies like Microsoft moved their European headquarters to Ireland. Microsoft is the source of much jobs in Ireland. Of course this facts are not related in any way.

-The Danish government was blackmailed by Microsoft (Bill Gates particularly), according to some sources. It was a threatening about 800 jobs [12]. Microsoft denied.

-The Dutch government has been in secret, exclusive negotiations with Microsoft for a 147 million-Euro deal [13]. Other companies didn't had a chance, though Linspire later said they could do the same thing for a tenth of the money. The Dutch government says it supports open souce, but this fact shows that might not be the whole thruth.

Roles of big software companies

Yes, that's the mess we're in, and, unsurprisingly, it appears Microsoft

has a big role in it, since they're the biggest advocates of software patents.

Recently, Brad Smith, a top-jurist, started a discussion about software patents, saying they want only good patents adopted [14]. People knowing Microsoft, know this is just one of their tactics. This campaign of them forms their appearance on the surface, but inside, other things are boiling.

The Microsoft Corporation holds over 3,000 patents in the United States and an estimated 5,000 more applications are waiting approval [15]. Obvisously, they want to make money from it.

As you may know however, Microsoft is infringing on many patents. Just google for “Microsoft infringes patents”, and you'll get a lengthy list. That's only the known patents they infringe on, and since the windows-source is closed, they probably infringe much more patents.

Recently, with help from I started a database on patents Microsoft “MIGHT” infringe on [16] (note Steve Ballmer tends to forgot that word when speaking about patents Linux infringes on).

As you can learn from this list, it's not all about Microsoft, but also largely about IBM, Apple and Sun.

More info

Sometimes, it is said the subject doesn't matter to the EU-citizens. Nonetheless, a petition against software-patents is already signed by 390.000 EU-citizens [17].

For more info, you should definitely visit the website (though not very objective maybe, but the best source on the subject).


[1] quote from
Link to the source
[2] EPO, Guidelines for Examination, PART C, 2.3.6 Programs for computers;
Link to the source
[3] US-patent 6,727,830, granted by the USPTO April 27th, 2004.
Link to the source
[4] Citing Mark Plekker in Technisch Weekblad, March 11th 2005, 9th page; "Bescherming van onzinpatenten" (protection of nonsens'patents).
[5] - Bill Gates, Challenges and Strategy Memo. 16 May 1991; to the source
[6] website, Software Patents in Europe: A Short Overview;
Link to the source
[7] See the FFII's Thank Poland action; to the source
[8] See the groklaw article from mar 07 2005;
Link to the source
[9] Brinkhorst: Danish decision about software patents made in backroom
Link to the source
[10] Letter to the council: "What happened on Monday?"; mar 10 2005
Link to the source
[11] McCreevy's homepage,
Link to the source
[12] Gates blackmailed Danish government; feb 16 2005;
Link to the source
[13] (Dutch) Overheid in geheime besprekingen met Microsoft; (Government in secret negotiations with Microsoft); dec 13 2004;
Link to the source
[14] Brad Smith, "Improvements to the Global Patent System Start at Home"
Link to the source
[15] Patents,
Link to the source
[16] Patents Microsoft might infringe on at (Linux newssite),
Link to the source
[17] Ani-softwarepatent petition by Eurolinux, at
Link to the source

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