Dutch Parliament Insists on Strict Tests for Software Patents

In a parliamentary hearing in the Netherlands two weeks ago, a majority of coalition and opposition party members of parliament instructed the Dutch secretary of state for economic affairs to arrange thorough obviousness and novelty tests in the patent system before allowing any software patents, and to actively promote this view in the European Union.

"This is one of the best moves the Dutch Parliament ever made with regards to Information Technology" said Luuk van Dijk, spokesman on software patents for the Dutch Open Source Society. In a novel display of hacker political power, the Open Source Society has been effectively lobbying Parliament on the software patent issue.

The test criteria are to be drafted by FENIT, the dutch IT industry organisation, and VOSN, who got the item on the Dutch political agenda in the first place. Clearly the 30,000 existing software patents and their level of absurdity are now on the political agenda.

The parliamentary hearing sparked off with Hindriks (PvdA), Udo (VVD), van Walsem (D66) and van der Hoeven (CDA) stating their concerns: broadly speaking, trivial patents on software and business methods were worse than having no patents at all. In reaction to this, the secretary of state hurried to say how thoroughly he agreed, followed by almost the same arguments as three months ago. Those arguments stated the law was unclear and put smaller companies in an unfavourable position compared to large companies. Finally, Hindriks "summarized" the statements of the secretary of state by asking, "So, you are going to oppose software patents until the obviousness criteria are in place?" To which, the secretary answered "yes". As of now, this is the formal position of the Netherlands within Europe.

The criteria already mentioned by the MPs were the ones VOSN and FENIT already agreed upon: patent claims for software have to be accompanied by a working piece of code, which is unique for Europe as far as I'm aware; and the invention has to involve an experiment, which has to be proven by the applicant.

VOSN and FENIT are currently debating further criteria and the extent to which they should be explicitly formulated. There are still differences between VOSN and FENIT. For instance, VOSN wishes to see explicit rules which state that the mode of reasoning that goes "software makes electrons move, therefore it is technical" is unambiguously forbidden. In other words, the clear delimitation of what is technical and what is not should put "software as such" on the latter side.

Finally, VOSN is a bit worried about the conduct of the European Union's Directorate General for the Internal Market. All this national democracy is very nice, of course, but European Guidelines tend to pretty much overrule it. A public letter to F. Bolkestein expressing our worries has been published by Eurolinux.

FENIT was not available for immediate comment.

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