The IPKat has received, from Simon Gentry of the Campaign for Creativity, the following statement, issued yesterday:


The move by a small minority of MEPs to restart the legislative process on the Computer Implemented Directive (commonly misnamed the “Software patents” directive), will create further confusion, cost and uncertainty for Europe’s most innovative small and medium sized companies.

Supporters of the Directive believe the proposed Motion in the European Parliament which is primarily based on ‘discontinuity’, lacks sufficient grounds to validate restarting a legislative process which has been going on for five years now.

Simon Gentry of the Campaign for Creativity said the move by opposition to delay the Directive further, begins to make a mockery of the legislative process.

“Given that the facts surrounding the Directive have remained the same throughout the process there is no case for repeating the whole process. From the outset, the Directive sought to clarify the existing laws on patentability. It is obvious that the current patenting regime creates a positive legal framework which is supportive of innovative IT companies. The IT sector is thriving. Even Open Source is thriving in the current regime. Those who want to abolish patentability for CI inventions need to prove that the current system is not working. After five years they have failed to do that. Restarting the debate will not alter that fact. Europe’s creative and innovative industries need a stable and effective legal environment in which to thrive. This attempt to drag the debate on for another three years will do the opposite".
The IPKat agrees that the present state of affairs -- judged by the benefits it has achieved -- works pretty well in practice, whatever anyone says about the theory. Also, when it comes to any form of legal reform, the burden of proving that it is needed falls on whoever wants to change the status quo. However, no-one ever died of a debate. If there had been more and better-informed discussion of the CI issue in the first place, it might not be finding itself used as a lobbyists' football now.

Do current IP laws harness our capacity for creativity or do they put it in shackles?

Another campaign for creativity here
More on creativity here and here
The Six Myths of Creativity here
RETURN OF THE KILLER DEBATE? RETURN OF THE KILLER DEBATE? Reviewed by Jeremy on Thursday, January 13, 2005 Rating: 5


  1. A large part of the discussion is in fact about what is the status quo. EICTA and friends consider the EPO's practice, and to a certain extent the UKPO's practice and the UK's case law, as the "status quo" which should be codified into law.

    The opponents of software patents, such as FFII and, note that not all of Europe follows that practice. For example, Sweden does not follow the "further technical effect in the technical contribution" approach, they simply look at whether the subject matter has technical character and whether this subject matter with technical character is novel, non-obvious and industrially applicable.

    The Polish Patent office today still adheres to the German core theory. In the Netherlands, no software patent has ever been tried before a court. The German high patent court does not uniformly follow the EPO.

    In this sense, a "harmonisation of the EPO status quo" would in fact constitute a change for those countries that do not follow it (which is pretty much any country out there). As such, the fear of opponents is that things *will* change in practice, because owners of software patents will be certain that their patents will be granted and enforceable (if novel/non-obvious) anywhere in the EU.

    We also do not see a substantial difference between what is called "software patents" in the US and what is called "computer-implemented inventions" here. Most of the European "CII" patents have US equivalents, and in the US they don't have patens on "source code or object code" of programs either (which is how the Council text reinterprets the term "program as such).

    It is often refreshing to look at how US-based proponents of software patents look at the discussion here in Europe. They don't mince words and plainly state what it's about.

    It would be nice if people in Europe would do that as well, so that we could finally have a discussion about the grounds of the issue: are software patents beneficial to the European economy and innovation or not?

  2. The only reason we can be so sanguine at the moment about CII patents, particularly some of the more questionable ones towards the pure software end, is that they have hardly ever been used in anger.

    But more and more US companies (and very noticeably Microsoft) seem to be moving away from a view of these patents as purely defensive bargaining counters, and instead rather as levers they can use strategically or aggressively.

    Will we be so relaxed in ten years time about having allowed these patents?

  3. The current system has already harmed:

    The Videolan project was asked by DTS to remove their support for DTS audio decoding because they were in violation of their EPO patents:

    Yes, patents can hurt Free Software. And directly since Free Software developpers cannot count their users, and even not more pay royalties on that basis. Proprietary vendors can at least pay licence fees in the best case, if they have enough money to do it.

  4. Let me go this way. A Patent is a monopoly granted by law. Looking at the the legislative process we can se that there are no too many SMEs involved strongly in pro CI legislation. There are many against. Forgive me not citing Treaties - competition and consumer protection, those are core principles of EU. Can someone explain me how a monopoly based on such CI law will fit into those principles? Anyway, posting a comment is not a good way as a discussion. There is too many topics in this "hot subject".
    Have a nice day.

  5. Sigh... I'm so tired of hearing people like Simon Gentry, patent lawyers et all. trying to confuse the debate.

    "Those who want to abolish patentability for CI inventions".

    Dear Simon: It's has been shown time and time again that the directive as suggested by the council/commission is about patents for software. Software is not and should not be patentable.
    Drop the CII BS or support a directive which makes as clear distinction.
    The only reason your afraid of a restart of the debate is that you don't want it to become clear that what you really want is softwarepatents.

    In a related FUD news I saw Mr. Mark MacGann, the director general of pro-patent organisation EICTA, quoted for disagreeing that patents are a threat to open source software.
    What do this guy know about that? Have he even read the arguments? Does he know what Open Source software is? ... I think not.

    In another realted FUD declaration I can read in Greg Aharonian's IP Patent newsletter that:

    "On one side, you have scientifically illiterate politicians opposing software patents, on the other side you have patent lawyers arguing the science and engineering of software as the logical basis for software patents."

    What about the scientifically illiterate patent lawyers?

    And that he is:
    "tired of copyright lawyers pretending they understand enough science to shape laws involving "ideas", "processes", and "methods". - If they did understand enough science, they would be patent lawyers. "

    No, Mr. Aharonian... if they understood science, they would be scientists!

    Of the patent lawyers I've met from various *PTOs there have been none who gave me the slightest impression that they had a clue of what software and softwaredevelopment was. Maybe they were just playing stupid to avoid admitting to the arguments against their agenda, but the questions they asked implied an absolute lack of understanding for what software is and how it's developed.

    So please... cut the BS and let's discuss this for what it really is: An attempt to legalize softwarepatents in Europe

    And let's then discuss the implications when this new directive allows issuing patents which can be infringed only by running software on a computer, or communicating over the Internet or providing such software.

  6. As an amateur philosopher I reckon there is something very fundamental missing from the whole debate on computer implented inventions: all sides debate as if the economy were an end in itself.

    Doubtless human society originates as a survival strategy and in this case, when continued survival means cooperation to produce the means of subsistence, then clearly the individual must be subservient to the economy.

    Tsunami's not withstanding, we now dominate the world and this century will undoubtedly see us controlling the weather. Written constitutions now all pay lip-service to human dignity yet fail to grasp that today the economy subserves individual freedom.

    The internalisation of the notion of survival as competitiveness in the economy is the single most damaging attitude in the world - because of the degree to which it is held. Economy = production, distribution and consumption. Even a cursory glance at this shows it has no respect whatever for the human being as an individual. It cares not at all for human dignity, thereby giving the lie to politics swallowed by economic dwarfism. Our societies are like humpty-dumpty and set for a fall.

  7. > Simon Gentry of the Campaign for Creativity said the
    > move by opposition to delay the Directive further,
    > begins to make a mockery of the legislative process.

    The legislative process ended with the councils amendments, that is what our elected representatives deemed an acceptable level of protection for European society to grant to CI (software). What has occured in the council since that time is farce and to suggest otherwise is insulting to those citizens, businesses and MEP's who have been following events.

  8. "The legislative process ended with the councils amendments, that is what our elected representatives deemed an acceptable level"

    Hmm, I do not remember going to the elections for voting for who will be the minister of agriculture or economy. And those anonymous IP lawyers who works in the ministries have a lot of power. Skip democracy, skip your parliament, skip the debate, go as far and fastest as you can, because pro-patent people doesn't have real strong arguments for pushing that kind of law. They are clueless and their arguments doesn't take the road if you take the dust out of what they say.

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