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SAP is a software and business consultancy company that lobbies for software patents and business method patents. They have been called "probably the biggest European computer company in favour of software patents".[1]

In the EU software patents directive, SAP bought full page ads arguing for software patents in the European Voice newspaper.[2] Their pro-swpat lobbyist was lawyer Guenther Schmalz.[3]

SAP also funded Campaign for creativity,[4][5] a sock puppet organisation that claimed to represent "artists" but was actually a lobby group of SAP and Microsoft.

They confirmed their pro-swpat stance in May 2009 in their response to the EPO EBA referral G3-08.[6]

Bilski submissions

In the 2008 in re Bilski case in the USA, SAP America, inc. submitted an amicus brief:[7]

machine-implemented inventions (e.g computer-implemented software and other computer-implemented inventions), by their very nature, meet the standard of being patent-eligible implementations [...]
Amicus encourages this Court to confirm the patentability of software that has a practical implementation, and to avoid unnecessarily broad terms which would jeopardize settled expectations for those who have patented software inventions that fall well inside Section 101 and which are key to the nation's economy and job growth.

Pages 25 and 26 of the brief PDF cite the US FTC report on innovation to explain that software is developed incrementally.

SAP's first argument is that patents are necessary to encourage investment in research:

Without patent protection, a new entrant could easily duplicate the unique innovations that SAP developed through considerable investment, circumvent copyright laws by making trivial alterations, undercut the investments and efforts of SAP and other companies by avoiding the high cost of research and development, and thus unfairly compete in the marketplace. To prevent such a scenario, companies like SAP have come to rely on the strong safeguards afforded by this country's patent system...

Of course, Microsoft's development of Windows 95 without relying on patents clearly shows that Software progress happens without patents.

Their second argument is that the disclosure is useful. Here, they cite the US FTC report on innovation again on page 27 of the pdf, and from the in re Alappat ruling they cite:

"[i]t is estimated that 85-90% of the world's technology is disclosed only in patent documents."
(Newman, J., concurring)

However, this is clearly not true for software. Aside from what percentage of restrictively-licensed software is document, there is a very large area of software called free software which is documented completely by the sharing of the original, human-written source code.

Litigation by and against


  • Any big cases?

Against SAP

Related pages on ESP Wiki

External links