How (Not) To Get Rid Of Software Patents

Today we have seen general elections to the Berlin City Parliament. Perhaps you may know that Berlin is not only a big city with some 3.5 Million inhabitants which also is the capital of Germany. In addition, Berlin constitutes one of the 16 states of Germany. Hence, Berlin City Parliament plays its role not only in the context of the City but also with regard to the federal structure of Germany.

At the time of writing of this posting, exit polls show that the Berlin chapter of the German Pirate Party will surpass the 5% quorum by a quite sensational 8-9% share on votes. This result shows that the mood especially of younger voters and first time voters is changing, moving away from all of the established parties including the Greens and the Left (Die Linke). At the occasion of the last Germany-wide general elections to the federal parliament in September 2009, the Pirate Party had got less than 2% of the votes. Many voters are reluctant to cast their vote for any party that is well below the 5% hurdle because of the high probability that voting for such party has no power to change anything. However, now, after the Berlin chapter of the German Pirate Party not only got over the 5% quorum by some narrow margin but obtained a sensational surplus of up to 4 percent points over the 5% hurdle, such reservations dwindle and, hence, I expect to see them in more State Parliaments of other Bundesländer in the coming years. And, like it or not, taking the history of the other German grassroots party, the Greens, as a precedent, the Pirates might well sit in the lower chamber Bundestag of the German Parliament in 2017 if they miss the 5% hurdle in the next general elections scheduled for fall 2013.

What does this mean with regard to Intellectual Property politics and business?

Well, in the first place, it will have no formal effects because of all German legislation in this field falls into the competence of the Federal Republic (Bund), not into that of its States (Bundesländer). There is virtually no chance to take perceivable influence on this field when sitting in a State Parliament only. And, as it looks for now, the Pirates will not get included in the Berlin State government. So they will not have any immediate influence on federal politics via the upper chamber of the German Parliament where representatives of the States are sitting (Bundesrat). But, unless parliamentarians of the Pirate Party manage to diminish their own political influence by grossly exhibiting incompetence and/or creating chaos, they soon may rise up to a status comparable to that of the Greens or so.

The German Chapter of the Pirate Party make some assertions on the fields of Copyright and Patent Law. Unlike other branches of the international Pirate Party movement, the German Piratenpartei appear not to have joined the patent abolition bandwagon: They are, however, demanding to ban patents on software, genes, biological organisms and business methods.

Therefore, nobody should be surprised if in the mid-term range we will see a continuation of the debate on the patentability of computer-implemented inventions a.k.a. software patents.

Starting around the turn from 20th to 21the century a chorus of critics of the patent system started striving to get public attention in mainstream media. The first big issue has been the Diplomatic Conference for the revision of the European Patent Convention (EPC) held in 2000. The basic proposal for the revision of the EPC (Document MR/2/00 , dated 13.10.2000) comprised a proposal to cancel the language “,and programs for computers” from Article 52 paragraph (2)(c) defining the limits of patentable subject-matter:

Article 52
Patentable inventions

(1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and
which involve an inventive step.
(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or
doing business, and programs for computers;
(d) presentations of information.

This proposal caused some uproar in parts of the general public (in fact mostly some NGOs like FFII), and EU Member States eventually backed down, resulting in an untouched wording of Article 52 (2) EPC being maintained with the revised edition EPC2000.

Afterwards, another big debate started in February 2002 when the European Commission launched a proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions (Commission proposal COM(2002) 92). The Draft attempted to harmonise patentability of software-related invention throughout the EU on the basis of the term computer-implemented invention. For the purposes of the Directive, the following definitions were given:

(a) “computer-implemented invention” means any invention the performance of which involves the use of a computer, computer network or other programmable apparatus and having one or more prima facie novel features which are realised wholly or partly by means of a computer program or computer programs;
(b) “technical contribution” means a contribution to the state of the art in a technical field which is not obvious to a person skilled in the art.

In its Article 4, the first Draft of the EU Commission suggested to draw the line between software-related inventions eligible to patent protection and those which are not as follows:

Article 4
Conditions for patentability

1. Member States shall ensure that a computer-implemented invention is patentable on the condition that it is susceptible of industrial application, is new, and involves an inventive step.
2. Member States shall ensure that it is a condition of involving an inventive step that a computer-implemented invention must make a technical contribution.
3. The technical contribution shall be assessed by consideration of the difference between the scope of the patent claim considered as a whole, elements of which may comprise both technical and non-technical features, and the state of the art.

This approach appeared (and still appears) to be much in line with relevant case law issued by the Boards of Appeal of the European Patent Office (EPO). However, various NGOs, in the first place again FFII, strongly opposed any harmonisation which would lead to a statutory consolidation of patentability of software-related inventions as usually practised by EPO. After FFII had, by intense lobbying in the European Parliament, managed to have a plenary vote at the end of the first reading in 2003 passing umpteen partially self-contradictory amendments to the Draft text as tabled, the future of the European patent system teetered for a while on a knife’s edge. Finally, in 2005, after the second reading, major parliamentary groups in the European Parliament understood that there was no chance to pass the Draft Directive with a text representing anything near the gist of the original Draft of the Commission. A broad majority decided that to have a burial of the entire legislative project ought to be be perferred over crippling the entire patent system in Europe by imposing the outcome of the first reading to the EPC and all national patent laws. Hence, tn July 2005, the entire project was rejected in another plenary vote of the European Parliament after the second reading.

After that the debate on software patents died down. A conference organised by the European Patent Office and held in Brussels on July 05, 2007, under the title “Computer-implemented inventions: where do we stand in the debate on ‘software patents’?” made perfectly clear that nowhere any intentions were living to re-start the legislative process to have a sectoral Directive on patentability of CIIs.

In view of the Berlin event today it might perhaps be proper to speculate that, in restrospective, next stop in the ongoing debate on Intellectual Property matters in general and on patentable subject-matter was the foundation of various Pirate Parties from 2006 onwards. On January 01, 2006, the Pirate movement originated in Sweden; Mr Rickard Falkvinge brought the Piratparti into existence. The German Chapter was founded in September, 2006.

When taking a view on the years to come during the second decade of this century, what might happen if large droves of younger voters continue to support the Pirate Party in general elections?

When having a look at the statutory patent law, any political attempts to alter the law might chose one of two points of action:

• Pre-grant criteria for allowable subject-matter like those given in Article 52 EPC; or
• Post-grant criteria governing the enforcement of granted patent claims by exceptions and limitations.

With regard to the first alternative, there appears to be a huge obstacle which stems from some conceptual error which was already included in the EU Commission’s attempt to harmonise patentability of CIIs: they all thought of computer-implemented invention meaning any invention the performance of which involves the use of a computer, computer network or other programmable apparatus. There is, however, a problem: With regard to a broad range of inventions, you can in principle freely interchange electrical circuitry hardware and computer software. It is merely a tradeoff between complexity and costs on the one hand and speed on the other. A proper language should have read any invention the performance of which can be reached by involving the use of a computer, computer network or other programmable apparatus. Accordingly, we should talk of computer-implementable inventions, not of computer-implemented inventions. Even if a claim text never explicitly mentions a computer it is evident that, in view of a certain class of computer-implementable inventions, using a system made up of a computer plus a matching software can constitute committing an infringement of the claim. If someone really intends to create a world wherein no patent claim ever can be used against someone running a computer under a certain software (Stallman’s utopia), all patents on inventions related to information processing must be banned because of such information processing could, at least in theory, be implemented by running software on an incarnation of a general Turing Machine by means of some sort of von-Neumann-Computer. This would, in turn, mean that patents could be granted only on  certain chemical or mechanical inventions not representing information processing.

Such restriction of the patent system to oil-encumbered businesses of the 19th century could by no means be brought into line with the TRIPS  agreement requiring in its Article 27 that patents shall be available in all fields of technology:

Article 27: Patentable Subject Matter

1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.5 Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.
2. Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.
3. Members may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.

It should be noted that TRIPS is part of the World Trade Organisation (WTO) Membership Package; hence, it appears to virtually impossible to ignore or to substantially change Article 27 if political parties in Germany so demand. Hence, any future legislative attempt by Pirate Party MPs to change German and/or European patent law with regard to provisions on patentable subject-matter will most likely be frustrated by non-resilience of TRIPS and the entire WTO system – unless a miracle helps them and strong political forces grew up in the United States, making U.S. parliament inclined to abolish patents on business methods and on software, paving the way for some major TRIPS amendment. But hoping this way would come next to believing in the Easter Bunny.

The other path, i.e. introducing exceptions and limitations to provisions governing the post-grant enforcement of patent claims granted,  in principle appears to be more realistic than the pre-grant path discussed above. Theoretically, Germany could, without infringing the EPC, limit enforcement of claims by introducing a non-enforceability clause saying something like that a patent claim is deemed not to be enforceable vis-a-vis a programmable system which resembles the technical teaching of the claim exclusively because of its programming. However, there is an IP enforcement regime on EU level and such clause might turn out to be contrary EU acquis. Furthermore, all beneficiaries of the current patent system would fiercely any such political move.

But another point has to be observed. According to German constitutional law, any right awarded to an individual enjoys the constitutional protection guaranteeing property. This has nothing to do with the question as to whether or not the term Intellectual Property is in itself misleading. Even someone’s  legal entitlement to benefits from a pension scheme can well be ‘property’  in the sense of German constitutional law. Hence, if today were the very last day where the German and/or the European Patent Office are entitled to grant a patent on an computer-implementable invention, it would take up to 20 years until the last of such sort of patent lapses. Making a law that would just declare patents on computer-implemenable inventions void or unenforceable amidst of their lifespan of 20 years would most probably contrary to the German constitution and, hence, get  nullified by the German Constitutional Court. Such scenario would be entirely different with regard e.g. to the cancellation of a granted patent by a nullity case on the basis of further prior art found but not considered during examination. Such cancellation is lawful because of at filing date of the  respective patent application, patent act had made clear that grant of a patent is subject to cancellation if certain conditions apply.

In order to summarise up: the success of the Berlin Chapter of the German Pirate Party is a strong sign that also in the field of IP protection times may well be changing. But there is no reason for panic, hectic or the like: Most likely, there will be no hasted short-term consequences. I guess that the primary hot-spots of debate will be in the field of Copyright where there are quite grave problems of statutory law and its enforcement. But on a very long range, changes might even be unavoidable if a new generation of voters and their politicians takes a different view on innovations and their legal regulation. This time should be used for constructive measures helping the European economy.

(Photo: (C) 2009 by Casp via Wikimedia under the terms of a CC-BY-SA license.)