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  4. <title>FSFE - Software Patents in Europe</title>
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  7. <center><h1>Software Patents in Europe</h1>
  8. [<a href="/campaigns/swpat/swpat.html">Introduction</a> | Background | <a
  9. href="/campaigns/swpat/status.html">Status</a> | <a
  10. href="/campaigns/swpat/documents.html">Further Reading</a>]
  11. </center>
  12. <h2>What are patents?</h2>
  13. <p>The idea of patents goes back to the medieval monarchs who conferred
  14. rights and privileges in the form of open letters (latin "litterae
  15. patentes") bearing their royal seal. Such patents on procedures to make
  16. glass, for instance, were commonly granted on the basis that this skill
  17. be taught to others.</p>
  18. <p>Later, democratic governments took the place of monarchs, but the basic
  19. idea remained the same: a limited monopoly was granted for a certain
  20. invention or process in exchanged for making that invention or process
  21. public. That way others could learn from it and further develop new
  22. inventions and processes.</p>
  23. <p>The underlying principle of patents and their justification is that
  24. they are monopolies which are granted by society for the sake of
  25. benefitting society.</p>
  26. <h2>What are software patents?</h2>
  27. <p>Software itself is implemented logic. Consequently, software patents are
  28. monopolies granted on implemented logic. It is important to understand
  29. that such monopolies are not on the implementation itself, which is
  30. covered by Copyright, but on the underlying logic of the
  31. implementation.</p>
  32. <p>Therefore, a software patent manifests a monopoly on specific calculation
  33. methods, which makes mathematical laws, logical rules and business
  34. processes property of companies, effectively disappropriating society
  35. of its grown knowledge.</p>
  36. <p>The effects of this can be dramatic. Not only does every program
  37. literally embed thousands of ideas that could be subject to software
  38. patents: While patents in other fields normally don't reach far outside
  39. the field they were granted in, software patents affect all areas and
  40. applications of software equally.</p>
  41. <p>Since software itself is increasingly becoming a determining factor,
  42. software patents have an incredible reach and more or less cover all
  43. areas of economy and society.</p>
  44. <p>Software patents are affecting the electricity industry as much as they
  45. affect insurance companies. They harm IT companies like IBM and
  46. research institutes like Fraunhofer. They are even bad for health.</p>
  47. <p>For good reason did the European Patent Convention (published 1973)
  48. explicitly state that the field of programs for computers, i.e.
  49. software, is excluded from patentability.</p>
  50. <p>Software patents are harmful to innovation, economy and society, so they
  51. lack justification.</p>
  52. <h2>Why would anyone want them?</h2>
  53. <p>Software patents were seen as a convenient tool by large companies in
  54. the United States to defend themselves against competition:</p>
  55. <p class="quote">"If people had understood how patents would be granted when most of
  56. today's ideas were invented and had taken out patents, the industry
  57. would be at a complete stand-still today. [...] A future start-up
  58. with no patents of its own will be forced to pay whatever price the
  59. giants choose to impose. That price might be high: Established
  60. companies have an interest in excluding future competitors."
  61. <br />
  62. <div align="right">
  63. William H. Gates<br />
  64. Internal Microsoft Memo (1991)<br />
  65. [Fred Warshofsky, The Patent Wars (1994)]
  66. </div></p>
  67. <p>It should be understood that while the price of software patents is paid
  68. by all companies, big and small, the big ones can afford paying the
  69. price a little longer as they have deeper pockets. Also, they believe
  70. that it is worth the price to rid themselves of competition.</p>
  71. <p>Paying the price for the system, companies obviously want their return on
  72. investment, which is why the Business Software
  73. Alliance (BSA), a lobbying organisation for huge U.S. companies, has been pushing strongly for the adoption
  74. of software patents in Europe, without
  75. European involvement.</p>
  76. <p>Europe as a region is still gaining on the U.S. in terms of IT industry
  77. as it is free from the burden of software patents that the United
  78. States imposed on themselves.</p>
  79. <p>The small and medium software companies have made Europe a central
  80. player in innovation, while in the U.S., innovative software
  81. development is limited to a few monopolists.</p>
  82. <h2>The European Patent Office (EPO)</h2>
  83. <p>Another group that benefits from software patents are patent lawyers,
  84. because patent lawyers are needed to apply for a patent, to grant a
  85. patent and to contest a patent in court. From their perspective,
  86. software patents offer an area of almost unlimited patentability
  87. without the need for development or research.</p>
  88. <p> Of course, patent lawyers are also found in the
  89. European Patent Office (EPO), which has prepared the ground for the
  90. introduction of software patents by granting roughly 30,000 software
  91. patents -- acting clearly outside its mandate and disregarding the
  92. European Patent Convention from 1973. </p>
  93. <p>Since patent lawyers are also found in many ministries across Europe and
  94. not wanting to step on the toes of the EPO, several European
  95. politicians are now trying to legitimize these patents by declaring
  96. these to be "computer implemented inventions."</p>
  97. <p>That is why the directive in question is called the directive on
  98. "patentability of computer implemented inventions."</p>
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