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SAS ruling by EU Court of Justice on 2 May 2012
ECJ case SAS Institute v. World Programing Ltd (C-406/10) is about copyright, not patents. However, some parts of the ruling give insight into how the ECJ might look at cases about patentable subject matter.
The case was referred to the ECJ by the High Court of Justice of England and Wales.
 Ruling excerpts
 Software functionality monopolies?
The most substantial comment is about the harm of monopolising ideas, which suggests that the court might take a critical view of software patents:
40. As the Advocate General states in point 57 of his Opinion, to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.
 Other bits of minor interest
And on a minor note, the following may give an indication about how the court interprets "as such". Closer reading required...
33. With respect to international law, both Article 2 of the WIPO Copyright Treaty and Article 9(2) of the TRIPs Agreement provide that copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.
The only mention of patents is the following excerpt which says very little:
13. Pursuant to Article 9 of Directive 91/250, the provisions of that directive are without prejudice to any other legal provisions such as those concerning patent rights, trade marks, unfair competition, trade secrets, protection of semi-conductor products or the law of contract.
And there's a strange sentence about what doesn't constitute a "form of expression":
neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression. Accordingly, they do not enjoy copyright protection.
...could have an impact on use of the freedom of expression argument.
There's also discussion of the EU's "Directive 2001/29", which could contain references to patents, but probably not. Quick check required...
 November 2011 opinion from Advocates-General
57. To accept that a functionality of a computer program can be protected as such would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.
 Also applicable for patents?
The Advocates-General point out the dangers of allowing software ideas to be monopolised by "as such". (Note: this use of "as such" has no relation to the "as such" wording problems in the EU software patents directive.) The context is that a company tried to use their copyright as the basis for owning/monopolising an idea, so "as such" means "by copyright". So the question is: would the advocates general see the same problems if someone tried to do the same thing, but with a patent instead of copyright?
What would the differences be? The only big difference would be that the monopoly from a patent would be shorter - twenty years instead of fifty or seventy. But is twenty years "short" in software development? Obviously not. It's an eternity, very similar in effect to fifty or seventy years.
So, unless there are other elements of context which have to be looked at, it seems the Advocates-General would have the same negative opinion if presented a question of whether software patents should be accepted.
 On the ruling
- ECJ Judgement C-406/10, ECJ, 2 May 2012
- ECJ press release, ECJ, 2 May 2012
- EU Court of Justice: No Copyright on Computer Functionality or Computer Languages, 2 May 2012, Groklaw
- EU's top court: APIs can't be copyrighted, would "monopolise ideas", 2 May 2012, Ars Technica
 On the Advocates-General opinion
- OPINION OF ADVOCATE GENERAL, delivered on 29 November 2011, Case C-406/10
- EU court adviser: copyright doesn't protect software functions, 29 Nov 2011, Reuters
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