Spain About To Bring In Software Patents — Just As US Starts Moving Away From Them

from the not-learning-from-the-past dept

Last year, Techdirt noted how the Supreme Court’s decision in Alice v. CLS Bank seemed to be having a positive effect on limiting the patentability of software. Against that background, it’s regrettable that Spain appears to be moving in the other direction with its new Patent Act (original in Spanish), which is being brought in without any public debate, it seems. The key section of the proposed law is Article 4, which spells out patentability. It specifically says (Section 4c) that “computer programs” are excluded from patentability — but then goes on to add (Section 5) that it is only software “as such” that is excluded. This is the same formulation that is used in Article 52 of the European Patent Convention (EPC), which dates back to 1973, when the application of digital technology was very different:

(1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(d) presentations of information.

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

That “as such” clause in the EPC opened up a huge loophole for companies to seek patents on software in Europe, even though “programs for computers” are explicitly excluded. The same is likely to happen in Spain.

The new patent system is not yet law. Writing on Twitter, JM Gonzalez-Barahona explains:

It is still not approved by the Parliament, but the Government (proposer) has majority there (@Ppopular)

So, potentially there is hope for people in Spain to write to their MPs, to urge them not to repeat yesterday’s mistakes by exposing Spain to unnecessary litigation that will stifle the country’s local software industry, but that seems a rather slim hope.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

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Comments on “Spain About To Bring In Software Patents — Just As US Starts Moving Away From Them”

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Anonymous Coward says:

What really pisses me off

Is that all these things are forced on other countries around the world by the hegemony of the US, not just copyright, but anti-terrorist laws, spying laws, and other non-applicable laws.

Not only does this create a homogeneous mess of the world, but worse thing is these laws get abused by the rules of these countries using the excuse that a GREAT democracy like the US/EU need us to have these laws.

And even worse, the US then sometimes moves away from these crappy laws and regulations, while other countries are now stuck brutally enforcing laws they never had in the first place.
Take Cannabis/Marijuana laws, the US made other countries take hardcore stance on these “terrible drugs that ruin humanity” even proving them with surveillance equipment, and now some places in the US have made it legal, while other counties are punishing their people who used weed for centuries as if they are mass murderers. WTF?

And the new trend of “Human Slavery” is even worse, with unscrupulous politicians using them in their countries to enact broad Orwellian laws.

Anonymous Coward says:


In most cases, software should be covered under copyright, not patents. The Supreme Court smack downs of the CAFC have made that pretty clear.

Of course, once I have a copyright on software, that doesn’t prevent anyone else from writing code to do the same thing, as long as they don’t write it with my code.

And that is as it should be.

Coyne Tibbets (profile) says:

Re: Copyright

Go on and keep telling yourself that. But you might want to review a few actual cases first.

For example, take a look at the flowchart in this patent, and then read up on the Amazon 1-click lawsuit against Barnes & Noble.

The key thing to notice is that the lawsuit was not about Barnes & Noble copying Amazon’s code; it was about that pitiful six-box flowchart.

Anonymous Coward says:

So harmonise patent law means european countrys are
going to adopt the worst of the mediocre patent laws ,
even while the us is limiting the scope of software patents,
eg europe will get the worst of us ip, patent law.
Most programmers thinksoftware patents are only good for patent
trolls ,giving money to lawyers,
or hindering competion or attacking companys that want to invent
new products.
Theres no stupid lawsuits or software patent trolls in europe,
although theres been some lawsuits between samsung and apple ,other phone companys in european courts
over various technical patents on phones ,tablets .

Anonymous Coward says:

Is it a substantive change?

I’m not an expert on Spanish law, but I doubt the change will make much difference if it just brings Spanish law in line with the European Patent Convention (EPC). Patents granted by the European Patent Office (EPO) under the EPC can already be validated in Spain.

Although the EPO does grant patents for software inventions, it generally set a higher bar than the USPTO (pre-Alice). The Amazon 1-click patent application mentioned by Coyne above was allowed in the US but refused by the EPO.

As an aside, there has been some suggestion that the original reason for excluding computer programs from patentability had more to do with the perceived difficulties of patent examiners searching through computer code than any particular economical or moral reason.

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