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

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.

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