Software patents: letter to European MPs

The software patent threat is back in the European Union, through the “Unitary Patent” project currently reviewed by the Legal Affairs Committee (JURI) of the European Parliament. In a few words, the idea is to let the European Patent Office (EPO) define what can be patented and what cannot be. The problem is the EPO is well known for supporting software patents, and in addition, there is no democratic control over it.

You will find more details on the and on the Stop Software Patents websites.

After the latest battles against software patents in 2005, it was time for me to take my pen again and try to warn our representatives about the threats from software patents. The below letter was sent last week to each of the JURI committee, in English or in French version.

It doesn’t constitute any in-depth legal study on software patents, because I am only an engineer, without any advanced legal knowledge. It is rather a testimonial of my worries about these patents. These worries are justified by multiple deviances that software patents caused over the years in the whole world, and by the constant pressure faced by our representatives to make such patents legal in the European Union.

It may not be too late to write to your representatives at the European Parliament, but in any case, it isn’t too late to sign the petition that many companies and individuals already signed.

Dear Member of the European Parliament,

I am the creator and General Manager of Bootlin, a young European engineering company specializing in embedded software, supporting worldwide companies in designing embedded systems, on a rapidly growing market.

It’s the availability of a great number of Open-Source building blocks that allowed our company to experience continuous growth since its inception in 2004. Many industrial and consumer electronics products are designed with these building blocks. These blocks are developed by a vibrant community of software developers in the whole world, which our company participates to.

This dynamism would have been reduced if software patents had been legal in the E.U., as they are in the U.S.A. and in Japan. Because of their great number and because they are often trivial, such patents constitute a real “minefield” for inventors creating software and systems embedding software. For a company with limited resources, it is indeed impossible to make sure that the ideas that they implement by programming, or the software components that they reuse, do not step on a method already patented by someone else. The creator of an innovative product including software then runs the risk of having his/her investment ruined by a bigger competitor threatened by this invention. This competitor, if it owns a sufficiently big patent pool, could always find a trivial software patent that the competing product would infringe, and have the distribution of this product stopped. Another danger comes from “Patent troll” companies that do not create any product and only hunt for companies with products that could that infringe the patents they own.

We are also worried by the fact that at least in the software industry, patents are deviated from their primary purpose of fostering innovation. It is the exact opposite that happens, and it seems that patents today are only instruments for giant corporations to fight against competitors, big or small, and to prevent them from distributing competing products. In addition, the first patents granted a temporary monopoly in exchange for revealing a secret manufacturing process. For many software patents, like the famous “double click” patent owned by Microsoft, there is no more secret to reveal, as their effects are very easy to reproduce. However, we continue to grant a monopoly to their owners.

Therefore, our company is worried about the current plans to set up a unitary patent with a flanking unified patent court.

We are concerned that the regulation on the unitary patent, as agreed in December 2011 by the negotiators of the Council, the Commission, and the Committee on Legal Affairs of the European Parliament, leaves any and every issue on the limits of patentability to the European Patent Office (EPO)’s case law, without any democratic control or review by an independent court.

However, in spite of the rejection of software patentability by the European Parliament, through its vote on September 24th, 2003 and July 6th, 2005, the EPO continued to grant software patents, under the deceiving term of “computer-implemented inventions”. That’s perhaps because the EPO has a financial interest in granting as many patents as possible, and therefore fuel an increase in the number of litigation cases, for the profit of attorney offices but discouraging innovation, which is the main driver for our modern economy.

The regulation on the unitary patent is an opportunity for the EU legislators to harmonize substantive patent law in the EU institutional and jurisdictional framework, and to put an end to the EPO’s self-motivated practices extending the realm of patentability to software. Failing to do so, this unitary patent will do more harm than good to the EU ICT firms.

For these reasons, we urge MEPs to adopt amendments which clearly state that the EPO’s decisions are subject to a review from the Court of Justice of the European Union, and which reaffirm the rejection of software patentability, as voted by the European Parliament.

Don’t hesitate to contact me if you wish.

Kind regards,

Michael Opdenacker

Author: Michael Opdenacker

Michael Opdenacker is the founder of Bootlin, and was its CEO until 2021. He is best known for all the free embedded Linux and kernel training materials that he created together with Thomas Petazzoni. He is always looking for ways to increase performance, reduce size and boot time, and to maximize Linux' world domination. More details...

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