Frequently Asked Question: Do software patents exist in the EU?

Answer: The problem is that software patents exist in some ways in the EU. The power of patent governance is split between a legislature, an executive, and a judiciary.

The legislature (the European Patent Convention) says that software ideas are not patentable.

The executive (the European Patent Office) ignores this and approves software patent applications.

The judiciary (the national courts) usually declares the EPO’s software patents to be invalid whenever there is a court case.

So, for the most part, Europeans are safe from software patents. There are very few court cases because the patent holders are afraid their patents will be invalidated.

In 2005, after years of work, we blocked an attempt to change the legislation. That change would have made software patents valid.

Today, there are attempts being made, such as the EPLA, to remove the national courts from patent governance. The people behind the EPLA want to replace the national courts with a centralised EU court whose judges will be selected and continually reviewed by the EPO.

Further information:

• My software patents page, mostly with info about the pre-July-2005 struggle
• A longer, older version of what I said here
• A previous blog entry about the unfortunate lack of other options, we have to work for anti-software patent legislation
• FSFE’s software patent page
• Richard Stallman: The Dangers of Software Patents
• Bruce Perens has two essays on software patents in relation to standards, and in relation to free software

Ciarán O’Riordan,— Support free software: Join FSFE’s Fellowship