On October 22nd, some 500 staff took part in a demonstration during a meeting of the Administrative Council, symbolically showering delegates with chocolate coins to signify that the member states are solely interested in milking the organisation as a cash cow.

There is a recent article on a french online magazine LeMondeInformatique titled "Keith Bergelt, CEO of OIN : vive Linux and software patents".

Here are some extracts:

Is it possible to be a supporter of Linux and defender of software patents? Yes: ladies & gentlemen, let me introduce Keith Bergel, director of OIN (Open Invention Network).
Keith Bergelt defends its Maginot line


  1. Red Dove
  2. Software versus Pharma

Regional action

  1. India: Recent hot debate that requires your participation
  2. Europe: EU-EPLA and software patents legalised via a European central court
  3. New Zealand: new law proposal being discussed in Parliament
  4. United States: Ask McCain and Obama some precise questions


  1. Do not work
  2. Hot air
  3. Fast Business
  4. Complex
  5. Broad
  6. Industrial
  7. Developers
  8. Fear
  9. Protection
  10. Overlap


  1. Law
  2. No obviousness
  3. Justifications
  4. Democratic control
  5. Stop education
  6. Unbiased
  7. Harmonisation
  8. Revoke


6.4.1. Failure of the Software Implemented Inventions Directive

The first legislative development that surely took into account the reality of the open source software model, and in a quite spectacular(ized) way, is actually a failed reform: the rejected EU Directive on the patentability of computer-implemented inventions.[242]

The legislative history is quite well known, for having been intensively reported by mass media and unprecedently monitored from the Internet.[243] In a few words, the draft Directive experimented several years of debate and numerous conflicting amendments. The final proposal was rejected on 6 July 2005 by the European Parliament by an overwhelming majority (648 to 14 votes, 18 abstentions).244 In fact, both sides of the dispute had the possibility of claiming a victory: on the one hand, the EU did not impose on member states any rule concerning the patentability of software; on the other hand, the European Patent Office could continue to issue quasi-software-patents undisturbed.

It is interesting to compare the legislative history of this Directive with the one of the decompilation exception of the Software Directive. For the latter, a compromise solution (entailing purpose-bound decompilation under the conditions discussed at length in this paper) has been preferred to either clear-cut solution (i.e. a complete safe harbour for decompilation or a complete ban on it). In the case of the patentability of software implemented inventions, the complete rejection of the draft has been preferred to any compromise solution, considered as inadequate by both sides. Unfortunately, both approaches are prone to legal uncertainty and likely deter innovation and/or competition. [245]

For the purpose of the paper at hand, I mention the failure of the Directive in order to stress the new and growing relevance of the open source movement in decisions concerning innovation policy and software in particular. A relevance that was still inexistent at the time of the drafting of the Software Directive, but which is today explicitly recognized:

> The common position, if approved, would have allowed patenting of computer-implemented inventions. This outcome was advocated by big software firms, which argued that patents would encourage research spending and defend European inventions from US competition. On the contrary, the directive was criticised by supporters of ‘open source’ software, mainly smaller companies, who claimed copyright already protects their inventions and were afraid that patenting would raise legal costs. [246]

Despite the fact of being slightly off-topic in the paper at hand, I want to briefly comment on the issue of software implemented inventions. In fact, there are sound reasons to propose some kind of patent-like protection for software, and highly sophisticated legal reasoning that could be used in order to make this protection coherent not only with the European Patent Convention247 abound, and are essentially based on the distinction between pure software patents (making no “technical contribution”248) and computer implemented inventions249. However, there are also significant arguments suggesting that it would be irresponsible to reinforce software patents and make them a main legal tool in this field of technology.

In fact, the main problem of patent protection is that it is not a very friendly tool for small (or even individual) developers, while there is some evidence suggesting that even major players find it more useful as a strategic tool in dealing with other big players and as a barrier to entry and/or legal threats in dealing with the small ones. And, differently from what happened in other technological fields (I’m not sure without some responsibility of intellectual property law) individual innovators still play a major role in the software field.

And favoring concentration is a move that could hardly be reversed, hence one should carefully think about damaging the high level of “diversity” existing in this field. In fact, the empirically most relevant argument against software patents is precisely the fact that software
innovation is thriving even without them. To be sure, nobody ever suggested a convincing way to measure the “optimal” level of software innovation, hence it is not possible to say whether the current level — despite being high — is “high enough”. However, introducing an additional level of law-backed monopoly in a market where competition — helped by quite weak rules against pure free-riding, in the form of technology copyright — seems to work would likely be irresponsible. In absence of additional convincing evidence, Fritz Machlup’s old (but still valid) suggestion seems to be going against the introduction of software patents:

If one does not know whether a system ‘as a whole’ (in contrast to certain features of it) is good or bad, the safest ‘policy conclusion’ is to ‘muddle through’ - either with it, if one has long lived with it, or without it, if one has lived without it. If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it. [250]
In fact, a system where “software implemented inventions” are a normal legal tool in the field of software innovation is a completely new system. Instead, making some legal clarity about the impossibility of patenting software in Europe would likely not change any in the existing equilibria in software markets. [251]

As a final note, concerning interoperability, one of the Parliament amendments concerned the introduction of a new article (6a), requiring

Member States to ensure that licences are available to use a patented computer-implemented invention ‘on reasonable and non-discriminatory terms and conditions’ when such use is indispensable for achieving interoperability between computer programs and is in the public interest” [252]

Hence, it is reasonable to argue that interoperability was one of the crucial worries of the members of the Parliament opposed to the Directive.[253] And it is similarly reasonable (even if slightly more stretched) to argue that the impossibility of preventing interoperability eliminated much of the appeal of software patents for the coalition favoring them, so that maintaining the status quo of legal uncertainty (allowing some room for legal threats of uncertain strength) was preferred to a Directive clearly allowing patents on software implemented inventions, but also clearly mandating software interoperability under the patent system.

[242] 2002/0047/COD.
[243] In particular, several blogs and more traditional websites kept activists and the general public informed about the background of the draft directive and its progresses. Some examples (and additional links) can be found here: or (both last visited August 11, 2008).

[244] Note (06/07/2005 - EP: position, 2nd reading) from the European Parliament’s “Legislative Observatory” website, available at: (last visited August 11, 2008).
[245] About the cost of uncertainty in the patent system, see JOSHUA S. GANS, et al., The Impact Of Uncertain Intellectual Property Rights On The Market For Ideas: Evidence From Patent Grant Delays (July, 2007).
[246] Note (06/07/2005 - EP: position, 2nd reading) from the European Parliament’s “Legislative Observatory” website, available at: (last visited August 11, 2008).
[247] See GUGLIELMETTI, L'invenzione di software — brevetto e diritto d'autore , p. 188 (and 166—190 in general).
[248] It is quite telling that in the EPO’s brochure “Patents for software? European law and practice” (available at; last visited July 20, 2008) the terms “technical contribution” and “technical character” are mentioned several times, but never defined. To be sure, the definition of these terms is left to the EPO itself and to national courts, but this did not satisfy the European Parliament, which – during the debate and the works preceding the rejecting of the Directive – repeatedly asked for “a clearer definition of ‘technical contribution’” (see the note of the European Parliament’s Legislative Observatory mentioned in footnote 252).
[249] Ibid.: “[A] computer-implemented invention is an invention whose implementation involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program.”
[250] Machlup, Fritz (1958), An Economic Review of the Patent System, Study no. 15 of the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, 85th Congress, Second Session (Washington, D.C.: Government Printing Office).
[251] That having been said, the European Patent Convention (EPC) is already quite explicit. It puts “programs for computers” in the same category of non-patentable subject matters as “schemes, rules and methods for performing mental acts, playing games or doing business” and also “discoveries, scientific theories and mathematical methods”. In fact, it is well known that the exclusion of all these subject matters just concerns “such subject-matter or activities as such”. Hence, it is possible to patent a specific technical solution, with industrial applicability, even if it applies a “scientific theory” or a “mathematical method”, or a “computer program”. But it should be clear that the patentability of computer programs, simply used to run computers without any industrial application, is excluded by the Convention.
[252] Note (COD/2002/0047 : 20/06/2005 - EP: decision of the committee responsible, 2nd reading) from the European Parliament’s “Legislative Observatory” website, available at:; last visited August 11, 2008). See also RICOLFI, , who noticed also that a broad, sector-specific interoperability exception (for the purpose of reverse engineering and to achieve interoperability) could be used to limit the rights conferred by patent law, likely remaining

compliant with Articles 27 and 30 of TRIPs.

[253] As a quasi-humoristic, but quite telling note, consider that the main repository of open source projects, awarded to Wine its 2008 Community Choice Award in the category “Most Likely to Be Ambiguously and Baselessly Accused of Patent Violation”. (See; last visited July 28, 2008). Other finalist projects were frequently related to interoperability and/or reimplementation of commercial technologies, including ReactOS and Mono (open source reimplementation of the .NET client and server applications under Unix-like systems).