German parliament asks for curb on software patents
The German Bundestag (parliament) has filed a joint motion urging the German government to limit the grant of software patents.
The motion, submitted on April 16, requests a curb on granting patents to protect computer programmes with a view to promoting competition and innovation in Germany’s software industry.
The motion cites the German Patent Act and European Patent Convention, and further says that patentable components of software solutions are fundamentally incompatible with open-source software, even though the European Patent Office has granted software patents in the tens of thousands.
Not-for-profit organisation Foundation for a Free Information Infrastructure (FFII) has expressed its support for the motion: “Copyright protection is the right tool for a software business,” FFII vice president Rene Mages said.
“It is high time that the dangerous and unacceptable legal drift regarding software protection by overlapping patents gets stopped. We at FFII feel greatly encouraged by the German call to Brussels.”
Jens Matthes, partner at Allen & Overy in Duesseldorf, said that the motion appears to be driven by a “biased understanding” that patent protection favours larger, richer companies and that SMEs and individuals cannot take advantage of patenting, which could lead to an “unbalanced market that spirals towards monopolies and conglomerates, stifling further improvement and invention.”
He said it looks as though it has not been fully “thought through,” as it fails to demonstrate the benefits of copyrighting software rather than patenting for smaller businesses, and does not consider the immanent implementation of the Unitary Patent system, which aims to harmonise European patent law.
Translation is the biggest cost associated with patent protection, he said, which the Unitary Patent system is expected to reduce significantly.
The motion, which Matthes predicts will pass, but which will not have any legal or binding effect, seeks to urge the government to raise the threshold for determining a patentable “physical” effect in computer programmes.
“It aims at excluding mere algorithms from patentability as such, and with regards to software, the motion aims at limiting patentability to those inventions where a software element functions as a mere substitute of a mechanical or electromechanical element,” he said.
The motion is based on macro-economic beliefs rather than substantive evidence, he said, adding he is not aware of a study that illustrates the macro-economic impact of software copyrighting rather than patenting.
“The parliament is arguing that the German government must use its powers to make sure that software is not patented, which does not really fit in with the development towards an EU-wide Unitary Patent”, he said, suggesting the motion comes from a “national angle.”
