In September 2003 the European Parliament voted to reaffirm the exclusion of software from patentability. Meanwhile, the Commission and Council have ignored this vote and set new precedents in undemocratic lawmaking. The undersigned call on the various players to do their part in remedying the situation.

We are concerned that:

1. In recent years, the European Patent Office (EPO) has, in contradiction to the letter and spirit of the written law, granted more than 30,000 patents on rules for computing with conventional data processing equipment, below termed “software patents”. These patents are as broad, trivial and damaging as their US counterparts.

2. In September 2003 the European Parliament voted to reaffirm the exclusion of software from patentability by codifying the original interpretation of the law, and to clarify the terminology of the TRIPs treaty by recourse to the traditional theory of technical invention, as found especially in the German case law from 1976 to 2002. The vote came after 19 months of deliberation in 3 committees and was based on broad participation and an extensive research literature. Yet the Commission and Council have refused to even discuss the problems addressed by the Parliament. Instead they have attempted to force the discredited EPO practice through a second reading in a new parliament, with tighter time constraints and higher majority requirements.

3. The Council's text pretends to exclude software patents, but in fact only makes existing exclusions meaningless and prevents any effective limitation of patentability. Most of the wordings used therein do not serve any purpose apart from soothing the consciences of ministers and parliamentarians.

4. The Council's decision making was dominated by the very civil servants who run the EPO, and pushed through against the will of national parliaments. During the process, both the Council and the Commission have set troubling new precedents for undemocratic lawmaking in the EU.

5. The separation of powers guaranteeing democracy has failed given that the:
- executive power is represented by the EPO by default
- judiciary branch is also in the hands of the EPO through the decisions they have brought by themselves and have codified in case-law
- legislation power of the EPO is also apparent, as demonstrated during the formulation of the current wording of the patent directive.

6. That the adoption of the directive in its current form monopolizes control over the tools used by the much-often mentioned “information based society”, directly threatening free and unhindered access to information and therefore free speech.

7. Two of the three main principles of the European Union are hurt by the monopolization of software: the free movement of ideas and of goods.


For these reasons we urge the members of the European Parliament to reaffirm the Parliament's clear position of September 2003 by following the current Rapporteur of the directive, including everything that is needed to close the loopholes, or, failing that, to reject the directive entirely.

Therefore, we support the amendments endorsed by the FFII for drawing a clear line between what is patentable and what is not, and we ask the Members of the European Parliament to support these amendments in the JURI vote of next Monday, 20th June, by putting them forward to the plenary vote of European Parliament. The amendment-set proposed by the FFII overlap with the ones supported by the Rapporteur of the directive.

FFII Ten Core Clarifications (de | fr) (pdf en | pdf sv) (http://swpat.ffii.org/papers/europarl0309/amends05/juri0504/core.en.pdf )
FFII voting list for the JURI session of June 20 regarding amendments pertaining to the core clarifications: doc | pdf (http://swpat.ffii.org/papers/europarl0309/amends05/juri0504/FFII_core_voting_list.pdf
pat.ffii.org/papers/europarl0309/amends05/juri0504/FFII_core_voting_list.pdf