had voted in favor of software patents. It had approved the directive
on "computer-implemented inventions." The European Commission
directorate that proposed the directive said, and continues to say,
that it would not authorize software patents -- but the text they
proposed had many loopholes, any of which would have allowed patents
that restrict using ideas in software for your PC. Practically
speaking, that means software patents.On September 25 I heard the real news, from Hartmut Pilch of FFII, who
has studied the directive and its loopholes more carefully than anyone
else. He reported that the amendments adopted by the parliament had
closed all the loopholes. The vote was actually a victory for the
free software community. We lobbied against the megacorporations in a
national (or you could say multinational) legislature, and we won.
The initial erroneous reports were based on the mistaken understanding
that only complete rejection of the directive would prevent software
patents. On the contrary, a directive amended to clearly reject
software patents, as the parliament has done, is a step forward. The
European Patent Office (EPO) has issued ten of thousands of software
patents, in defiance of the treaty under which it operates. The
original directive would have made them all valid; the amended
directive will affirm they are invalid.
In the weeks before the vote, the Socialist Party had begun to
recognize the directive's problems, and proposed compromise amendments
that would have closed the best known loophole, the one that allowed
the patent's "inventive step" to be a software idea. (It used the
vague criterion of "technical character," which was supposed to
require a physical invention, but those two words could be stretched
to include almost anything.) But it's insufficient to close one
loophole when several others alongside it remain gaping open. For
instance, even interpreting "technical character" in the strict sense
of a physical system, it was sufficient for the inventive step to
involve use of a physical object, such as a computer or a mouse. Even
the infamous one-click shopping patent could have got through,
presented as a new way of using the undeniably physical mouse.
The day before the vote, I participated in a press conference held by
the Green Party, where we explained that further amendments were
needed to avoid authorizing software patents. Hartmut Pilch had
analyzed all the amendments and reported on how they would affect
software patents, preparing a handout that explained clearly which
were necessary and which were harmful. We thought about how to make
last-ditch arguments to persuade members of parliament to vote for the
Whether or not those arguments were effective, the outcome was
favorable. The parliament went much further than the Socialists'
compromise; it adopted amendments that close all the loopholes, and
made the directive a positive one. Threats from EU officials that
even the compromise amendments would be unacceptable may have
strengthened the parliament's resolve to show it cannot be
As a leader of the League for Programming Freedom, I began warning
Europeans about the danger of US-style software patents with a series
of speeches in the early '90s. It took a few more years before the
megacorporations, the US government, and the EPO began to lobby for
legitimizing software patents there. The European free software
community took the lead in opposing them.
But we did not present this as a campaign for the sake of free
software alone. Software patents are dangerous for all software
developers, outside of the megacorporations, and organized opposition
to software patents has included developers of free and non-free
software ever since the League for Programming Freedom began it.
European proprietary software companies have participated strongly in
this campaign. Officials of the EU and WIPO have reportedly suggested
making an exception to patents for free software alone, but we believe
we have a better chance of winning if we campaign for something that
would benefit nearly all programmers: to reject software patents
As the European Parliament began to consider the issue, opposition
spread beyond software developers. Librarians, consumer
organizations, opponents of privatization in general, the Green Party,
and activists campaigning on other issues of patent law (such as to
allow poor countries to make and trade life-saving drugs) also joined
our side. Economists did research showing both theoretically and
empirically that software patents do not promote progress and can
hamper it. All contributed to this victory.
We have won an important battle, but the war is not over. The September 24
vote was not the final decision; the directive as now amended can be
changed by the Council of Ministers, which consists of one
representative from each EU country. The council meets on November 10.
Europeans are now working to convince their governments to support the
amendments that the parliament has made. Removing even one amendment
could open a loophole big enough to admit truckloads of software
patents. Our victory in parliament shows we can win a battle, but if
we relax now, we can still lose in the final outcome.
Copyright 2003 Richard Stallman
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