Marco Schulze
CEO of Nightlabs

It is impossible to write software without infringing software patents. It took me only one hour to find a dozen patents with the potential to drive our company out of market, once these time bombs become legalized. Though the Council's proposal is written in a misdirecting language, it becomes obvious, if you read the text carefully, that it is intended to open the floodgates for software patentability.

According to the European Directive 91/250/EEC, software should be protected, by copyright, as literary works within the meaning of the Berne Convention. Every software developer knows that this law reflects reality: When writing a program, all we do is formulating a special form of literature in formal languages like C++, Java and similar.

Every human creation consist out of two parts: An implementation based on its concept. There exist usually many implementations for the same concept, hence blocking one concept by a patent (i.e. exclusion right) blocks uncountable implementations. Blocking a concept is therefore only justified, if it requires much more investments than creating an implementation for it - like in the domain of science. But as we know and the Berne Convention says, software should be protected as literary works - not as science. If we take an analogy from classical literature, an example for a concept might be this: "Two lovers live a love which is not tolerated by their families. Their situation leads finally to suicide of both." Some people might know the implementation "Romoe and Juliet". It is hopefully obvious that the implementation in these non-scientific (i.e. non-technical) domains requires much more work than devising a concept. Hence, in these domains, patents mean expropriation.

The Council's proposal redefines software subtly into something that does not exist in this world. Simultaneously, it grants patents onto something else which every software developer considers to be just a software-concept. That is a bit like reducing the word 'story' to a collection of words without meaning and appeasing worried authors: 'No, a patent on a criminal story cannot exist according to our directive! ...but the concept of a person murdering another one might be patentable under certain conditions.'

To avoid such a bizzare situation, we need a strict border between a software-concept (based on old scientific knowledge) and a software-aided scientific concept, i.e. a technical invention. The reporter, Mr. Rocard, the shadow reporter, Mrs. Kauppi and some Polish PPE members have proposed very useful amendments. We hope that they will be accepted.