[Fsfe-ie] Irish proposal on software patents passed

James Heald j.heald at ucl.ac.uk
Tue May 18 22:34:46 CEST 2004

Ian Clarke wrote:

> I am currently listening to the proceedings, it seems that there are a 
> number of changes.  For example, 1a has been changed to say "A computer 
> program as-such shall not constitute a patentable invention".   Some of 
> the other amendments seem convoluted - when do we anticipate having a 
> view on whether the final document addresses our concerns?

No: it was a con, which fooled enough delegations to get it through.

The proposal is not materially different to the one the Irish first 

Program Claims are still in.

Interoperability is still out.

Most importantly, the Commission (it's not clear with the deliberate 
complicity of Germany) conned the member states into thinking that they 
were offering a tightened up definition of the word technical, by 
claiming to offer a "compromise" on the German proposal for article 2(b):

> 2b. A technical contribution means a contribution to the state of the art in a field of technology which is NEW AND not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether these are accompanied by non-technical features.

cutting the rest:

"whereby the technical features must predominate. The use of natural 
forces to control physical effects beyond the digital representation of 
information belongs to a technical field. The mere processing, handling, 
and presentation of information do not belong to a technical field, even 
where technical devices are employed for such purposes.”

With all this cut, the only change the compromise makess to Irish draft 
is the addition of the word "new"!

In the first round SE, UK, FR, NL, CZ and HU spoke up for the Irish 

BE, PL, ES, DK, AT, DE, LV and IT all expressed reservations; with the 
other delegations silent.

But PL, DE and LV were apparently won over by the "compromise".  It's 
not clear whether DK was also bounced by Mary Harney into agreeing.
[see transcript extract below]

As Jonas Maebe writes:

> In the end, only Spain voted against, and Belgium, Italy, Austria and possibly Denmark abstained. I think a lot of countries were misled by Germany and the Commission. After all, "the German amendment" to article 2b was accepted by the Commission. In the end, it turned out this was a red herring, and did not change anything because the most important part was left out (as Italy and Denmark correctly remarked).
> I think the only change to the original proposal is that they added "new".
> Other amendments (all by the Commission/Bolkestein, afaik):
> * recital 13 deleted
> * recital 13a: "however" deleted
> * art 4a(1)(new) A computer program as such cannot constitute a patentable invention
> * art 4a (= original 4a + part in CAPITALS added) A computer-implemented invention shall not be regarded as making a technical contribution merely because it involves the use of a computer, network or other programmable apparatus. Accordingly, inventions involving computer programs, WHETHER EXPRESSED AS SOURCE CODE, OBJECT CODE OR ANY OTHER FORM, which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run shall not be patentable.
> And that's it... We have won nothing, except for maybe the deletion of recital 13 (which on its own means nothing, obviously).

Transcripts at


including this, which is why we are not entirely sure how to count the 
DK vote:

# IE: And Denmark? Can I hear from Denmark please?
# Denmark: I would really ask to commission whether they couldn't fix 
the last sentence put forward by Italy. It was in the original German 
# IE: I think the Commissioner already answered that question, I'm sorry 
Denmark. So are you yes, no, abstain?
# DK: I think we wouldn't, we're not hap...
# IE: Can I assume you're a "yes"?
# DK: We're not happy
# IE: But are you 80% happy?
# DK: But... I think we...
# IE: We don't need you you to be totally happy. None of us are totally 
# DK: I know that, I know that.
# IE: If we were, we wouldn't be here
# DK: I think we're not very happy, but I think we would, we would...
# IE: Thank you very much
# DK: ... we would like to see a solution today.

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