For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Tuesday, 9 November 2004

SOFTWARE PATENTS: THE BATTLE CONTINUES


The Register reports that the European Information and Communication Technology Association (EICTA) has stepped up its campaign in support of patents for computer-implemented inventions by launching a new site, Patents4Innovation.org. The aim of this site is to persuade people that the current form of the proposed Directive on computer implemented inventions will boost innovation. Failure to adopt the legislation will, EICTA maintains, jeopardise the work and livelihood of hundreds of thousands of researchers and inventors employed in Europe's high-tech industries (EICTA’s members include many prominent IT hardware firms).

The Polish government has however reached almost exactly the opposite conclusion and will oppose the directive when the Council meets to discuss it on 25 November. The government has concluded that, in its current form, the directive will be of no benefit to the European software industry and could even have an adverse effect on the industry in Poland. Says Mark MacGann, director general of EICTA:

"This Directive is extremely important for the future of innovation in Europe as it concerns two-thirds of all inventions in the European high-tech industry."
He argues that the issue has been made emotional "as a result of the sensationalized and inaccurate treatment by opponents to the legislation" and describes suggestions that the Directive paves the way for patents on software as "fallacious", adding that the technology industry rejects such patents.

A statement on the new EICTA site reads:
“Patents for software have never existed and should never exist in Europe because software is already protected by copyright law. Patents will only be granted for inventions of a technical nature. These include inventions in medical equipment, cars, mobile phones, aircraft, Televisions, voice- and image-recognition devices, digital rights management solutions, and Countless other examples”.
However, the terms of the directive are infamously broad, and EICTA's statements are misleading. priceWaterhouseCoopers recognises that the directive may have wide-ranging and unforeseen consequences. Three areas of the directive cause most of the problems:

1. To be considered patentable, a computer-implemented invention must involve a so-called inventive step, that is, it must make a technical contribution. However, despite a tiny last-minute change to placate the Germans the directive does not define the term "technical", leaving the lawyers a lot of room to play in.

2. Patent holders are not required to make an all-comers general licence available to parties who want to write software that interoperates with the patented process.

3. The draft allows for program claims, so that even supplying patented code, as opposed to running it on a computer, will be an infringement of the patent. This will make it impossible to post sections of code on websites, common practice in developer communities.

Anti-patenting organisations, such as the FFII (Foundation for a Free Information Infrastructure) and FSFE (Free Software Foundation, Europe), warn that because the directive is so loose in its terminology, it is open to abuse. The FFII in particular cautions that although it can be read as only allowing patents for software that supports a physical process, it could be used to support patenting of software business methods. The directive is currently awaiting its much delayed second reading.

The IPKat urges caution. Even if the present state of software patent law in Europe may be confused, uncertain and lacking in clearly expressed principle, it can hardly be said that all sectors of the software industry have done pretty well since the European Patent Office opened in June 1978. What’s more, computer literacy during that period has become so widespread as to be almost the norm throughout the territories of the European Patent Organisation. The balances between (i) software and hardware industries and (ii) between users and suppliers are pretty impressive. But current IP protection through patent and copyright law is already arguably too strong, which is why competition and antitrust authorities on both sides of the Atlantic have to work so hard to redress the balance -- and rarely appear to succeed.

Here's some hardware to help protect your software here, here and here

2 comments:

Simon Gentry said...

IpKat

It's a pity that you seem to have been taken in by the anti-IP groups line on the CII Directive. There are a number of points that you need to take into account:

1.The European Parliament has tightened up the language significantly and takes care of most of your concerns.
2. In most Directives that relate to complex areas such as patenting, the language needs to stay at a fairly high level - MEPs are not patent lawyers (I'm not aware of a single patent lawyer amongst the 732 MEPs)and I would suggest that the patent offices and courts are the right places to to the actual spliting of hairs, not the European Parliament which often only has the haziest idea of what IP is actually about (This is not a criticism of the MEPs - the IP comunity should get out of its ivory tower and do something to explain IP).
3.The Directive's impact goes far beyond what most people consider software: telephones, cars, domestic appliances, aircraft, etc. etc. are all within the terms of the directive. And these products are not developed by the romantics in the FFII.
3. Copyright (promoted by the anti-IP groups as the alternative to patents) does not and cannot protect the functionality caused by the software - only a patent can do that. (It is also worth noting that at least one of the big anti-IP groups, EDRI, has now come out against copyright as well!)
4. None of Europe's competitor economies are going to weaken their IP in this area - so European companes will be uniquely exposed to having their innovations stolen.
5. There is no evidence that the current EUROPEAN system actually causes difficulties (the opponents regularly invoke the US expeience but this is frankly spurious).
6.There is also a very serious risk of "technological discrimination" in the position adopted by the opponents of the Directive. The protection of software-based inventions would be considerably weaker than that enjoyed by other technologies. Why?

The Council of Ministers, representing the 25 Governments accepted nearly half of the European Parliament's amendments. Any further weakening of the Directive would do huge damage to the IT industry in Europe.

Think again IPKat

Anonymous said...

Thank you for the good article !
A few answers to the previous misguided (misguiding?) comment:

1) Simon Gentry says "The European Parliament has tightened up the language significantly and takes care of most of your concerns."
Well, considering that the council was very careful to unravel all the tightening, there is indeed much to be concerned by the current text !

2) Simon Gentry then goes on :"In most Directives that relate to complex areas such as patenting, the language needs to stay at a fairly high level - MEPs are not patent lawyers[...]the IP comunity should get out of its ivory tower and do something to explain IP".

Indeed, the IP community should explain what they put behind their "high level" concepts such as "technical character":
Case Number T 0258/03 - 3.5.1 [2] :
"The Board is aware that its comparatively broad interpretation of the term "invention" in Article 52(1) EPC will include activities which are so familiar that their technical character tends to be overlooked, such as the act of writing using pen and paper." !

3. Simon Gentry then says: "The Directive's impact goes far beyond what most people consider software:[...]And these products are not developed by the romantics in the FFII."

What's romantic about wanting competition in the software marketplace ? All the things (note "things") you mention could still be patented, but not the software you run on it, because patenting this software would do more economic harm (monopolies) than good (incentive).

3 Bis (?) Simon Gentry then goes on with "Copyright (promoted by the anti-IP groups as the alternative to patents) does not and cannot protect the functionality caused by the software - only a patent can do that."

Great! That means no functionnality is "protected" form competition, which is exactly what software consumer want for a healty software market, and what European software developpers want, to be allowed to take on the US entrenched market leaders.

4. Simon Gentry then show some great (faked?) misunderstanding of patents "None of Europe's competitor economies are going to weaken their IP in this area - so European companes will be uniquely exposed to having their innovations stolen."

Damned ! Do you really pretend to ignore that patents are not awareded accoarding to contry ? All companies (EU and non EU) will be able to compete in the EU software marketplace if we can dispel enough of your BS to keep software free from patents monopolies, and all companies (EU and non-EU) will not be able to do so in countries with software patents. Is that so hard to understand ? The only difference is :
- US-JP companies are bigger and get 75% of the EU software patents, so we (EU) will get screwed if competition shifts from marketplace to EPO and courtroom
- US companies are the current market leaders, so they get to define which software functionnalities will get used, so our smaller EU companies will have useless patents over unused technologies. Do you really think it will be possible to take on Microsoft Office domination (and 90% profit margin) it they get their patent on their file format ?

5. Simon Gentry then pretends "There is no evidence that the current EUROPEAN system actually causes difficulties (the opponents regularly invoke the US expeience but this is frankly spurious)."

This is not spurious at al when you consider that the only difference is that EU will insist on a technical effect, such as running on a computer. The only difference will that EU will insist on not allowing patents on computer programs that do not run on computers: who are you kidding ?

6.Then Simon Gentry goes with "There is also a very serious risk of "technological discrimination" in the position adopted by the opponents of the Directive. The protection of software-based inventions would be considerably weaker than that enjoyed by other technologies. Why?"

Let's cut the "software-based invention" crap, ok ? This is about software (only as running on a computer, I know). I'll give you reasons to avoid granting patents monopolies for software:
Because competition is weaker with software, because of the need for interoperability, because of the complexity of software that combine thousands of functionnalities, because research cost is comparatively extremely lower (no physical experiments), because selling your software (in executable form) does not force you to give anything easy to analyse and reproduce (straight copying is easy but alredy forbidden thanks to copyrights), because barrier to entry is much lower in the software marketplace, ...

Software if different than hardware (one writes software, you know), so it does makes sense that the differents properties requires different legal handling.


Final words from Simon Gentry:"The Council of Ministers, representing the 25 Governments accepted nearly half of the European Parliament's amendments. Any further weakening of the Directive would do huge damage to the IT industry in Europe."

Do you really pretend to asses the state of a legislative text (when each word counts) by a number of amendments ?
Not only did the Council removes all the relevent amendments. They keep all amendments that require "technical contribution" as they just scraped the definition of "technical contribution"!

I'd be glad if you could show us some reasons to belive in your statement about "huge damage to the IT industry in Europe", for reasons to believe the opposite, feel free to go to:
http://www.nosoftwarepatents.com
http://www.ffii.org
http://www.beauprez.net
http://www.noepatents.org

As a European computer programmer and research scientist (PhD.) I does not want the EPO to sell right to explude me from the marketplace.

I demand the right to work without fear of some EPO's customer-of-the-year to throw me in jail !

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':