Showdown in software patents war[fr][de] 

 Most of the debate has been dealing with the question of whether pure software, as opposed to software with a mechanical application, such as in an anti-blockage system in a car, should be patentable or not. The classical test that has been applied to a patent application has so far been whether it deals with the forces of nature, which would not be the case with pure software. 

During the three years since the publication of its first draft, the directive has been subject to strong lobbying efforts from its supporters as well as from its opponents. Industry groups like the European Information & Communications Technology Industry Association (EICTA) and the Business Software Alliance (BSA), which have most of the software and embedded devices industries' major players as their members, are pitted against a mostly grassroots movement rooted in the Linux community, which has the backing of many smaller software firms, as well as of some of the big players in the Open Source / Open platform software markets. The antagonism is reflected even in the title by which both sides refer to the draft Directive: While its opponents call it the "software patents directive", supporters refer to it as the "CII directive", where CII stands for "computer-implemented inventions". 

The situation is further complicated by the fact that many industry players don't speak out on the issue on their own behalf. Software vendors such as Microsoft , Apple and Adobe are members as well of BSA as of EICTA , the latter of which has launched the Patents4innovation initiative to deal with the patentability issue. This initiative's website says the directive would secure Europe's position as a leading global innovator, protect innovation and reward R&D, secure jobs, stimulate technology transfer and knowledge-sharing, provide for a fairer patent system across Europe and help avoid re-inventing the wheel.  

Patents4innovation refers to the EPC and points out: "A patent can only be granted for an invention that is new, non-obvious and makes a 'technical contribution'. It cannot be granted for pure software." The BSA , on a somewhat different note, attacked the rapporteur for his reference to forces of nature that an invention must deal with: "The 'forces of nature' concept dates to a time when inventions were primarily mechanical in nature. Incorporating this concept in 21st century legislation could drag European innovators back in time and risk excluding many cutting-edge technologies from patentability both now and in the future."

Those opposing the patentability of software without any mechanical component to it, such as FFII , say: "In the legal tradition patents have been for concrete applications of natural science ('technical inventions'), whereas patents on software cover abstract ideas. When patents are applied to software, the result is such that instead of patenting a specific mousetrap, you patent any 'means of trapping mammals' (or, for an actual example, any 'means of trapping data in an emulated environment')."