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 <title>Europe's &ldquo;Unitary Patent&rdquo; Could Mean Unlimited
 Software Patents - GNU Project - Free Software Foundation</title>
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 <h2>Europe's &ldquo;Unitary Patent&rdquo; Could Mean Unlimited
 Software Patents</h2>
 
 <address class="byline">by Richard Stallman</address>
 
 <p>Just as the US software industry is experiencing <a
 href="https://www.fsf.org/blogs/community/tal-when-patents-attack">the
 long anticipated all-out software patent wars</a> that we have
 anticipated, the European Union has a plan to follow the same course.
 When the Hargreaves report urged the UK to avoid software patents, the
 UK had already approved plan that is likely to impose them on UK.</p>
 
 <p>Software patents are dangerous to software developers because they
 impose monopolies on software ideas. It is not feasible or safe to
 develop nontrivial software if you must thread a maze of patents. See
 &ldquo;<a href="/philosophy/software-literary-patents.html">Software
 Patents and Literary Patents</a>.&rdquo;</p>
 
 <p>Every program combines many ideas; a large program implements thousands
 of them. Google recently estimated there <a
 href="https://www.theguardian.com/technology/2011/aug/04/apple-patents-android-expensive-google">might
 be 250,000 patented ideas</a> in a smartphone. I find that figure
 plausible because in 2004 I estimated that the GNU/Linux operating
 system implemented around 100,000 actually patented ideas. (Linux, the
 kernel, had been found by Dan Ravicher to contain 283 such ideas, and
 was estimated to be .25% of the whole system at the time.)</p>
 
 <p>The consequences are becoming manifest now in the US, but multinational
 companies have long lobbied to spread software patents around the world.
 In 2005, the European Parliament took up the second reading of a
 directive that had been proposed by the European Commission to authorize
 software patents. The Parliament had previously amended it to reject
 them, but the Council of Europe had undone those amendments.</p>
 
 <p>The Commission's text was written in a sneaky way: when read by
 laymen, it appeared to forbid patents on pure software ideas, because it
 required a patent application to have a physical aspect.  However, it
 did not require the &ldquo;inventive step,&rdquo; the advance that
 constitutes a patentable &ldquo;invention,&rdquo; to be physical.</p>
 
 <p>This meant that a patent application could present the required physical
 aspect just by mentioning the usual physical elements of the computer on
 which the program would run (processor, memory, display, etc.). It
 would not have to propose any advance in these physical elements, just
 cite them as part of the larger system also containing the software.
 Any computational idea could be patented this way. Such a patent would
 only cover software meant for running on a computer, but that was not
 much of a limitation, since it is not practical to run a large program
 by hand simulation.</p>
 
 <p>A massive grass-roots effort&mdash;the first one ever directed at
 convincing the European Parliament&mdash;resulted in defeat of the
 directive. But that does not mean we convinced half of Parliament to
 reject software patents.  Rather, it seems the pro-patent forces decided
 at the last minute to junk their own proposal.</p>
 
 <p>The volunteer activists drifted away, thinking the battle won, but the
 corporate lobbyists for software patents were paid to stay on the job.
 Now they have contrived another sneaky method: the &ldquo;unitary
 patent&rdquo; system proposed for the EU. Under this system, if the
 European Patent Office issues a patent, it will automatically be valid
 in every participating country, which in this case means all of the EU
 except for Spain and Italy.</p>
 
 <p>How would that affect software patents? Evidently, either the unitary
 patent system would allow software patents or it wouldn't. If it
 allows them, no country will be able to escape them on its own. That
 would be bad, but what if the system rejects software patents? Then it
 would be good&mdash;right?</p>
 
 <p>Right&mdash;except the plan was designed to prevent that. A small but
 crucial detail in the plan is that appeals against the EPO's
 decisions would be decided based on the EPO's own rules. The EPO
 could thus tie European business and computer users in knots to its
 heart's content.</p>
 
 <p>The EPO has a vested interest in extending patents into as many areas of
 life as it can get away with. With external limits (such as national
 courts) removed, the EPO could impose software patents, or any other
 controversial kind of patents. For instance, if it chooses to decide
 that natural genes are patentable, as <a
 href="https://www.techdirt.com/2011/07/29/appeals-court-says-genes-are-patentable-because-theyre-separate-your-dna/">a
 US appeals court just did</a>, no one could reverse that decision except
 perhaps the European Court of Justice.</p>
 
 <p>In fact, the EPO's decision about software patents has already
 been made, and can be seen in action. The EPO has issued tens of
 thousands of software patents, in contempt for the treaty that
 established it. (See &ldquo;<a
 href="https://web.archive.org/web/20190120193501/https://webshop.ffii.org/">Your
 web shop is patented</a>.&rdquo;) At present, though, each state decides
 whether those patents are valid. If the unitary patent system is adopted
 and the EPO gets unchecked power to decide, Europe will get US-style
 patent wars.</p>
 
 <p>The European Court of Justice ruled in March that a unitary patent
 system would have to be subject to its jurisdiction, but it isn't
 clear whether its jurisdiction would include substantive policy
 decisions such as &ldquo;can software ideas be patented?&rdquo;
 That's because it's not clear how the European Patent
 Convention relates to the ECJ.</p>
 
 <p>If the ECJ can decide this, the plan would no longer be certain
 disaster. Instead, the ball would be one bounce away from disaster.
 Before adopting such a system, Europe should rewrite the plan to make
 certain software is safe from patents. If that can't be done, the
 next best thing is to reject the plan entirely. Minor simplifications
 are not worth a disaster; harmonization is a misguided goal if it means
 doing things wrong everywhere.</p>
 
 <p>The UK government seems to wish for the disaster, since <a
 href="https://webarchive.nationalarchives.gov.uk/ukgwa/20140603093549/http://www.ipo.gov.uk/commissairebarnier.pdf">it stated in
 December 2010 [archived]</a> that it wanted the ECJ not have a say over the system.
 Will the government listen to Hargreaves and change its mind about this
 plan? Britons must insist on this.</p>
 
 <p>More information about the drawbacks and legal flaws of this plan can be
 found in <a href="https://www.unitary-patent.eu/">unitary-patent.eu</a>.</p>
 
 <p>You will note that the term &ldquo;intellectual property&rdquo; has not
 been used in this article. That term spreads confusion because it is
 applied to a dozen unrelated laws. Even if we consider just patent law
 and copyright law, they are so different in their requirements and
 effects that generalizing about the two is a mistake. Absolutely
 nothing in this article pertains to copyright law. To avoid leading
 people to generalize about disparate laws, I never use the term
 &ldquo;intellectual property,&rdquo; and I never miss it either.</p>
 
 <div class="infobox extra" role="complementary">
 <hr />
 <p>First published in <a
 href="https://www.theguardian.com/technology/2011/aug/22/european-unitary-patent-software-warning">
 <cite>The Guardian</cite></a></p>
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 <p>Copyright &copy; 2011, 2022 Richard Stallman</p>
 
 <p>This page is licensed under a <a rel="license"
 href="http://creativecommons.org/licenses/by-nd/4.0/">Creative
 Commons Attribution-NoDerivatives 4.0 International License</a>.</p>
 
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 <p class="unprintable">Updated:
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 $Date: 2022/04/12 11:15:30 $
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