This Op-Ed was written by Rasmus Keller, Specialist Group Spokesperson for the IP and IT law specialist group (Bundesverband IT-Mittelstand e. V. – BITMi) and co-chair of Working Group Intellectual Property
In the EU, softwares are mostly protected by copyright, allowing rights holders to take action against infringers without monopolising their product. However, software-related patents are also granted, preventing other software developers from being able to use, reproduce or distribute their own implementation of the software, and thus undermining innovation and competition in the software market. Furthermore, this status quo challenges Europe’s digital sovereignty, as European SMEs find themselves embedded in costly and time-consuming patent disputes, while American companies continue to hold the vast majority of software-related patents effective in the European market.
Below you will find a preliminary regulatory proposal from Rasmus Keller, software developer, IP lawyer and co-chair of Working Group Intellectual Property Rights, indicating a potential avenue to address this problem: pushing back software patents. In the weeks to come, we want to continue this conversation and further involve our membership in this discussion. Therefore, we invite all the members of our network to share with us their impressions, suggestions and contributions to this debate by writing to WG IPR Coordinator Naira López Cañellas at email@example.com.
Proposal for a Legislative Initiative to safeguard economic copyrights in computer programs
– Freedom to operate Directive –
A. Background and problem
The copyright protection system is a guarantee for open software markets and low market entry thresholds
The EU has decided to protect computer programs by copyright (so called copyright approach). The Directive 91/250/EEC of 14 May 1991 (now codified version 2009/24/EC) on the legal protection of computer programs has established the copyright protection of software. The copyright law offers a range of claims for the rightholders to take action against infringers without monopolising product features. Additionally, the source code that is responsible for providing the product features is hidden in the software binary. According to this directive every computer program is protected by law and every developer or software company is enabled to distribute his or its software to gain profits and market shares. The copyright approach is therefore a democratic and performance-related approach for the IP protection of computer programs. The copyright protection system is a guarantee for open software markets and low market entry thresholds.
On the other hand, ten thousands of patents are granted on so called inventions covering computer programs. At least 121.718 EP-patents are registered that mention the word computer program in their claims on 30. May 2023. The patent claims represent abstract solutions that can be implemented in countless computer programs. In fact, software related patents are claiming features of computer programs. To receive such a patent the applicant does not need to disclose any source code or even does not need to be able to write any line of code. Vice-versa the patent owner receives an exclusive right to use the patented invention and to prohibit any use by third persons. For a simple outline of a feature, a patent as monopoly right can be acquired that prohibits the distribution of all the usually elaborate and complex implementations of the feature in source code. Hence, patent protection in the field of software leads to a blatant disproportion between the rather low intellectual performance that is needed to receive a patent and the extensive scope of the IP right obtained based of this effort.
For a simple outline of a feature, a patent as monopoly right can be acquired that prohibits the distribution of all the usually elaborate and complex implementations of the feature in source code.
As a result of the grant of a software related patent, any other person in particular developers or software companies are not allowed to use their own implementation of a patented feature within a software although it is protected by the directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs. The affected developers and software companies are not allowed to reproduce or distribute their software. The economic existence of such businesses is jeopardized by software related patents. This also violates the fundamental rights of software developers and their businesses, in particular the right to property (Article 17 Charter of Fundamental Rights) and the freedom to choose an occupation (Article 15 Charter of Fundamental Rights). The granting of software-related patents undermines the well-designed system of copyright protection for computer programs.
Innovation needs legal certainty, especially with regard to IP rights
Innovation needs legal certainty, especially with regard to IP rights. This applies in particular to the software industry. Tens of thousands of software-related patents have been granted on features of computer programs and prevent Freedom to Operate for market participants. As a result, new software developments are exposed to a high risk of patent disputes. Startups and SMEs in particular lack the capacity to conduct patent disputes. In this way, the SME- and competition-friendly system of copyright protection for computer programs is undermined. This creates serious obstacles to growth and barriers to market entry.
Furthermore, the vast majority of software related patents that is effective in the common market of the EU is owned by big tech companies resided in the US. These companies have built up a large stock of software related patents with broad claims that easily can be used to threaten and destabilize new market participants founded within the EU. As a result, software related patents preserve the dominance of US big tech companies about key technologies and the key infrastructure built on this software. Software related patents are a serious obstacle for the digital sovereignty of the EU and may outbreak initiatives to build European tech champions like Scale-Up Europe.
Software related patents are a serious obstacle for the digital sovereignty of the EU
(1) First it must be secured that no further software related patents are granted.
A Software related Solution is hereby a solution/invention that needs a computer to be executed or implemented. Hence, a Software related Patent is a patent that covers a Software related Solution. Traditional approaches refer to the question if the software solution has got a technical character, uses technical means or causes a technical effect. But all of these questions are ultimately philosophical in nature. They are not sufficient to provide a clear response to patentability, in particular on the condition that the priority of copyright protection is respected. To give all market participants and stakeholders a clear formula to understand which solutions is eligible for patent protection and which solution shall only be protected by copyright we suggest a hands-on formula:
A patent shall not be granted on inventions that comprise computer programs or require computer programs to be implemented. As an exception patents can be granted on inventions if the computer program can be substituted / replaced equivalently by a mechanic or electromechanical component. This not the case if the patented device process calculations or the patented process requires calculations.
The Substitution Rule safeguards that the majority of software solutions is excluded from patent eligibility and thus in regard to these solutions an open area of Freedom to Operate and innovation for all developers and market participants is established. All participants are empowered to develop their own implementations of software features using different source code without infringing any patents.
On the other hand, the Substitution Rule won’t hinder the grant of patents of (control) processes or (control) devices which can use software as an implementation method or component but not depend on software. This is the case if the implantation can equivalently be realized by mechanic or electromechanical components. For example, methods for washing laundry in a program-controlled washing machine that does not include decisions based on calculations can also be realized with mechanic or electromechanical components. Such solutions and innovations are still eligible for patent protection.
The Substitution Rule will establish an Open Area of Freedom to Operate and innovation for all developers and market participants
(2) Second the stock of already granted software related patents must be defused:
The large stock of already granted software related patents must be defused to establish the open area of Freedom to Operate. Therefore, the Substitution Rule must be applied on already existing patents and in such way build a Protective Shield for the economic copyright of the software developers and companies.
The Protective Shield effects that no patent claims can be used against software in regard to implementations of a software related solution that is not eligible to patent protection according to the Substitution Rule.
Software can not be object of patent claims (injunctive relief, damages etc.), unless the computer program can be substituted / replaced equivalently by a mechanic or electromechanical component. The computer program can not be replaced if the patented device process calculations or the patented process requires calculations.
To implement the Substitution Rule and the Protective Shield we suggest the following regulation:
Draft for an Amendment of Directive 2009/24/EC for the protection of the exclusive rights of authors in regard to computer programs (Freedom to Operate Directive)
Having regard to the Treaty on the Functioning of the European Union and in particular Article 114 thereof, acting in accordance with the procedure laid down in Article 294 of the Treaty,
(1) Ten thousands of patents are granted on so called inventions covering computer programs. The patent claims represent abstract solutions that can be implemented in countless computer programs. In fact software related patents claim features of computer programs. To receive such a patent the applicant does not need to disclose any source code or even does not need to be able to write any line of code.
(2) Vice-versa the patent owner receives an exclusive right to use the patented invention and to prohibit any use by third persons. As a result, any programmer or software company is not allowed to use their own implementation of a patented feature within a software although it is protected by the directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs.
(3) In particular the author or rightholder of a computer program which violates an already granted patent is not allowed to reproduce, alter or distribute their own computer program for business objectives outside the private domain. This is not in compliance with the exclusive rights of the authors laid down in Art. 4 of the directive 2009/24/EC.
(4) Therefore an amendment of the directive is necessary. First it must be secured that no further software related patents are granted. Second the stock of already granted patents must be defused.
The following directive shall be adopted:
Article 8 of the Directive Regulation (EC) No. 2009/24 is replaced by the following:
Article 8 Protective shield, application of other legal provisions
- Member States shall safeguard by their legislation:
(a) A patent shall not be granted on inventions that comprise computer programs or require computer programs to be implemented. As an exception patents can be granted on such inventions if the computer program can be substituted equivalently by a mechanic or electromechanical component. The computer program cannot be replaced if the device that is subject of the patent application processes calculations or the process that is subject of the patent application requires calculations.
(b) A computer program shall be not object of claims (injunctive relief, damages etc.) resulting out of a patent violation, unless the computer program can be substituted equivalently by a mechanic or electromechanical component. The computer program cannot be replaced if the patented device process calculations or the patented process requires calculations.
- The provisions of this Directive shall be without prejudice to any other legal provisions concerning trademarks, unfair competition, trade secrets, protection of semi-conductor products or the law of contract.
- Any contractual provisions contrary to Article 6 or to the exceptions provided for in Article 5 (2) and (3) shall be null and void.
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Directive is addressed to the Member States.
DIGITAL SME joins forces with partners to kick off the standICT2026 project supporting ICT experts’ participation in ICT standardisation
Through the 3-year project’s life-cycle, DIGITAL SME will lead activities to increase Small and Medium Enterprises’ participation in setting and using ICT standards for new technologies and better access to global markets
The initiative will boost SMEs’ participation in international and European technical committees, thus contributing to EU leadership in standardisation
DIGITAL SME is strengthening engagement in ICT standardisation!
DIGITAL SME joined partners to kick off the standICT2026 project to strengthen SMEs’ participation in leading standards-settings activities for core technologies relevant to their products and services. Through this modus operandi, SMEs’ participation in standardisation will foster positive impact in global competitiveness and alignment with EU’s vision for geopolitical leadership.
SMEs’ engagement in ICT standardisation is crucial for their business operations. DIGITAL SME Secretary-General, Sebastiano Toffaletti, recognises that “the success of digital services, offered by our digital SMEs, depends on robust and open ICT standards, not only for regulatory purposes but also for technology adoption for non-ICT SMEs, struggling in identifying the right tools and avoiding technology lock-in.”
Throughout the project, DIGITAL SME will support ICT experts’ engagement in ICT standardisation priorities and SMEs’ promotion for interoperability, openness of interfaces, access, portability of data, and other priorities identified by the EC Rolling Plan for ICT Standardisation.
DIGITAL SME will lead on establishing a mentorship program for new experts, helping them in developing a standardisation expertise via the support of established specialists. This program will be beneficial for SMEs interested in standardisation but which have yet to develop the required capacities. The mentorship program is part of a larger standards academy, facilitating access to resources, including SME tailored guidance. DIGITAL SME will also lead a consultation process to ensure that policy recommendations are aligned with the European Commission’s priorities for ICT standardisation.
Among its several activities, standICT2026 provides fundings to experts to join technical committees of European and international standardisation organisations, with emphasis on increased SMEs’ participation. The project allocates around EUR 3 million over the following three years. Each expert can benefit for up to EUR 60.000 over a total of nine calls.
If you are interested in more updates over the funding calls or news on ICT standardisation, fill in the expression of interest.
DIGITAL SME invites all our members to join our effort in building a wide and vibrant network for collaboration on ICT standardisation and the WG Standards.
The StandICT.eu 2026 project is funded by the European Union under grant agreement no. 101091933
EU4Business: Connecting Companies
EU4Business: Connecting Companies
This catalogue of “SME digital solutions for smart cities” showcases the excellence of European digital SMEs to local, national and European Public Administrations. SMEs digital solutions for both urban and rural ecosystems are welcome.
This call to action comes with the increased participation of the European DIGITAL SME Alliance in Smart Communities initiatives at the European level, with the support to the European Commission flagship initiative for the digital transformation of European cities, Living-in.eu, and participation in the AURORAL project.
Would you like to be featured on the catalogue? Join the Focus Group Smart Communities and contribute to shape the European ecosystem for smart communities!
For any query, please do not hesitate to contact Alessandra Zini at firstname.lastname@example.org
ISO/IEC 27002 – link versions 2 and 3
The ISO/IEC 27002:2022 (V3) is published with different section numbers than the current version. This table presents and matches sections numbers in the current version of ISO/IEC 27002:2013 – V2 with the new version ISO/IEC 27002:2022 (V3).
|V 2 (2013)
||V 3 (2022)
EU4Business: Connecting Companies
Online acquaintance meeting for BSOs
26 January 2022, 14.00 – 17.00 (CET)
Link to join the meeting
With this initiative funded under the EU4Business action of the European Union, DIGITAL SME and ATIC want to further collaboration between European Union (EU) and Eastern Partnership (EaP) business support organisations (BSOs).
The initiative will aim to increase knowledge sharing among BSOs and provide them with tools to support internationalisation of BSOs’ member SMEs and contribute to practical harmonisation of digital markets of EaP and EU.
This introductory meeting will allow all interested associations to ‘meet each other’ and discuss and identify common challenges and development goals. DIGITAL SME and ATIC will introduce the proposed services to the associations and their SMEs, as well as the foreseen activities.
If you are intersted – do not hesitate and join the event, learn more about the opportunities and services we will have to offer.
Meanwhile, if you wish to have more information about the project opportunities, see here, or send us an email at d.goll@digitalsme,eu
14.00 – 14.10 Welcoming participants
14.10 – 14.20 Introduction to the EU4Business initiative and the project
14.20 – 15.30 Ice breaker
14.30 – 15.15 Tour de table: BSOs introduce themselves, their priorities
15.15 – 15.45 Identifying common challenges and development goals: results of the survey and discussion
15.45 – 15.55 Short break
15.55 – 16.15 Introduction of services and best practices to the beneficiaries: Working groups, B2B-matchmaking for member SMEs, Funding Tool
16.15 – 16.45 SME focus: Discussion about BSO’s member SMEs and best practices for SMEs internationalisation
16.45 – 17.00 Next steps and wrap up
SBS PPE and Textile Care Forum 2021
Standardising Circularity in the PPE sector –
Digitalisation and Eco-design to support resilience in SMEs