Adi Kamdar is an activist at the Electronic Frontier Foundation specializing in copyright, patent, free speech, and intermediary liability issues. He can be contacted on his personal Twitter account at @adikamdar.
The German Parliament recently took a huge step that would eliminate software patents when it issued a joint motion requiring the German government to ensure that computer programs are only covered by copyright. Put differently, in Germany, software cannot be patented.
The Parliament’s motion follows a similar announcement made by New Zealand’s government last month (PDF), in which it determined that computer programs were not inventions or a manner of manufacture and, thus, cannot be patented.
This is a welcome trend. Though there have been many proposals to limit the harmful effects of patent trolls in the United States, the discussion has stayed away from addressing a larger, root issue: the flood of software patents. While many in the U.S. are bogged down in discussions of demarcation between what is software and what is not, the rest of the world is taking bold action.
The crux of the German Parliament’s motion rests on the fact that software is already protected by copyright, and developers are afforded “exploitation rights.” These rights, however, become confused when broad, abstract patents also cover general aspects of computer programs. These two intellectual property systems are at odds. The clearest example of this clash is with free software.
The motion recognizes this issue and therefore calls upon the government “to preserve the precedence of copyright law so that software developers can also publish their work under open source license terms and conditions with legal security.” The free software movement relies upon the fact that software can be released under a copyright license that allows users to share it and build upon others’ works. Patents, as Parliament finds, inhibit this fundamental spread.
Just like in the New Zealand order, the German Parliament carved out one type of software that could be patented, when:
the computer program serves merely as a replaceable equivalent for a mechanical or electro-mechanical component, as is the case, for instance, when software-based washing machine controls can replace an electromechanical program control unit consisting of revolving cylinders which activate the control circuits for the specific steps of the wash cycle
This allows for software that is tied to (and controls part of) another invention to be patented. In other words, if a claimed process is purely a computer program, then it is not patentable. (New Zealand’s order uses a similar washing machine example.)
The motion ends by calling upon the German government to push for this approach to be standard across all of Europe. We hope policymakers in the United States will also consider fundamental reform that deals with the problems caused by low-quality software patents. Ultimately, any real reform must address this issue.