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The German Parliament urges the government to limit software patents

19 June, 2013

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Deutsch: Deutscher Bundestag drängt auf Begrenzung von Software-Patenten

On 7 June 2013, the German Parliament unanimously decided upon a joint motion to limit software patents urging the government to take measures in this sense. In the German MPs’ opinion, supported by several SME associations, software should be covered exclusively by copyright, and the rights of the copyright holders should not be devalued by third parties' software patents.

The joint motion was introduced in the Parliament in April and after a first hearing, the legal committee held an external expert meeting on 13 May where most of the participants, including representatives from the industry, SME associations and other experts and groups such as the Free Software Foundation Europe (FSFE), supported the motion.

According to the motion, the only exception where patents should be allowed are computer programs which replace a mechanical or electromagnetic component. The Parliament also made clear that the actions of the Government related to patents must never interfere with the legality of distributing Free Software.

The Parliament acknowledges that, in actual practice, especially that of the European Patent Office (EPO) — software-related patents have been granted in the guise of “technical procedure” or “technical equipment” that would be necessary to use the respective software. “The number of software - related patents granted by the EPO alone has been estimated in the high five - digit range. This situation leads to substantial legal uncertainty for software developers: the abstract nature of the patent claims means that a software - related patent encompasses all of the separate embodiments of the protected problem solution in concrete computer programs. Computer programs which contain protected problem solutions may not be utilised commercially without the consent of the patent holder.

The software developers affected by this situation lose de facto the exploitation rights intended under copyright laws to the computer programs they have themselves created and are exposed to unpredictable cost and liability risks in the event of commercial utilisation. In addition, patent-protected components of software solutions are fundamentally irreconcilable with the terms and conditions of licences for largely open source software. There are justified fears that the general economic consequences of this situation will be a tendency to monopolisation in the software sector and the correspondingly negative consequences for innovation dynamics and the labour market,” says the text of the motion.

At an expert meeting in the Parliament on 13 May 2013, the industry associations BIKT and BITMi proposed changes to German copyright and patent law. One proposal was to add a "protective shield" clause in the German copyright law, to introduce a blanket ban on the enforcement of patent claims related to software. Another proposal was to provide clauses in the German patent law ensuring that the effect of patent claims would not extend to works protected independently by copyright.

The organisations present at the expert meeting also warned against giving all the responsibility to the EU which, in their opinion, has been incapable of providing legal certainty for software developers until now. "Germany now has to implement this decision in law, to send a strong signal towards Brussels," says Johannes Sommer of BIKT, one of the associations.

"Since the EU has decided to give away its power to make rules on the unitary patent, this step towards limiting patents on software is all the more important", stated Matthias Kirschner, FSFE's coordinator for Germany.

German Parliament tells government to strictly limit patents on software (12.06.2013)

Motion Proposed by the Parliamentary Groups of the CDU/CSU, SPD, FDP and BÜNDNIS 90/DIE GRÜNEN Securing Competition and Innovation Dynamics in the Software Sector (16.04.2013)

Software patents



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