The ill-fated EU Computer Implemented Inventions (i.e. software patents) Directive is in the news yet again. The Commission has rejected a request by Parliament for it to redraft the Directive. Instead, the Commission has said that the Council of Ministers will “review all aspects of the Directive”. MEPs are not likely to be happy. Two weeks ago, French Green MEP Alain Lipietz stated that if the Commission ignored the Parliament's request it would be an "insult" to the assembly.
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Citizen alert: IP legislation turns out to be a conspiracy!
ReplyDelete"Under the influence of the patent system and big industry lobbyists, the European Union is on the verge of making a huge mistake: to pass a law that would legalize software patents. If that happens, you will pay dearly. Europe's software industry will fall victim to unscrupulous extortioners. A cartel of large corporations will crush smaller competitors. Consequently, we will all pay more money for less good and less secure software. You personally, your household, your company, your government, all of us. "
http://www.nosoftwarepatents.com/en/m/intro/index.html
Dear Kat.
ReplyDeleteEven if we drop the subject of CII (aka software patents) this whole "mess" show us precisely the big problem with uncontrolled lobbying inside EU bodies and total lack of democracy inside Communities. Looks like the European Parliamet was treated as the unwanted step in the legal process. I wonder if the name "parliament" is even proper. Anyway the example of the legal process adopting _this_ Directive can be a reason to rethink EU ideas. Going furthe it may arise the question about EU Constitution.
Well maybe my thoughts are too pesimistic. Let's hope so.
> Under the influence of the patent system and big industry lobbyists,
ReplyDelete> the European Union is on the verge of making a huge mistake:
> to pass a law that would legalize software patents.
Hmmm... um... er..., I beg to disagree:
What do you mean when talking of a "software patent"?
Let us have a test: Would you like to say that every patent which can theoretically be used to successfully sue someone who is commercially tinkering with software qualifies as a "software patent"?
OK, I would like to call this approach "Stallman's Utopia": If you are fighting for a world where no patent is ever granted which is potentially enforceable against anybody commercially tinkering with software, you would have to advocate a ban on patents not only on computer-implemented inventions but also on omputer-implementable inventions.
The current Draft Directive in the version preferred by the EU Council (taken by the political agreement of May 2004) clearly is incompatible with "Stallman's Utopia": It allows the grant of patents which can be enforced against people who are, under certain circumstances, tinkering with software.
However, amongst patent experts it is commonly agreed that a patent can be enforced against someone commercially tinkering with software even if no "software as such" is patented: On the left hand side of the legal patent equation, i.e. on the side of the patentable subject-matter, we ever have an "invention" from the realm of the intangibles. On the right hand side of the legal patent equation, i.e. on the side of the enforcement, we have real-world people barred from doing something with tangible real-world objects, e.g. barred from tinkering with a computer having a certain software running thereon. And, we have the doctrine of "contributory infringement", i.e. even if not all features of a patent claim are embodied in a certain real-world situation, there might be (under some additional restrictive circumstances) be a case of a patent infringement. And, don't forget the doctrine of equivalences. In the effect, the enforcement on the right hand side can be directed against some wrongdoing that is not trivially identifyable on the left hand side where the patented invention is defined in terms of the claim language.
So I think it is a feature, not a bug, of the patent system that despite the fact that the Draft Directive in the version of the EU Council does not allow "software as such" on the left hand side of the equation, the enforcement on the right hand side can potentially well go against infringers tinkering with software in a commercial environment. But in this sense, the experts from the EU Council as well as from the pro-patent industries are right in insisting that the current Draft Directive in the Council's version does not permit "software patents" in the sense that patented subject-matter is software as such.
However, on the other side, if the anti-patent campaigners say that they oppose the EU Council's Draft Directive just because they think that they can be sued on the basis of patents on computer-implemented inventions when commercially tinkering with software, their complaints would be more coherent if they would state this more expressis verbis.
What has happened since years is that politicians are lobbied by the various anti-patent groups saying "we do not want to have software patents". Then the politicians go to the patent experts and receive an advice to the effect that such -and-such wording of the law "clearly does not allow software patents" in the sense that the patented subject-matter will never be "software as such". With this message the politicians again turn to the anti-patent activists, getting an angry response: "See here, there and there guys are sued because of they have commercially tinkered with software". As most politicians are not IP Law experts, they get really confused of this.
But the fuzziness of the language of the anti-patent lobbyists clearly has a tactical aspect: If they would stand up clearly demanding "We insist that the patent system is crippled in a way that nobody can ever be sued on the basis of a patent when commercially tinkering with software" one or the other of the involved politicians might start thinking and understand the enormous consequences of such proposal. So, many activists might prefer to talk about banning "software patents", provoking a misleading impression that such amendment of the law would be something like a "limited reform" of the patent system.
It would surely not be such a limited reform: Each and every act of information and signal processing can in theory be done by a von Neumann general purpose computer embodying a Turing Machine. This is what the term "computer-implementable invention" means: Any invention potentially suited to be embodied by means of a computer. So, implementing Stallman's Utopia means that each and every patent claim would have to be scrutinised whether or not it can potentially be embodied by means of a computer, throwing out every claim entirely consisting of features which, if taken together, can potentially (i.e. by their functionality) be embodied by means of a computer plus software.
For example, if a feature says that a "low pass filter" is placed in a signal path, this feature would clearly be "computer-implementable" because of a low pass filter can be implemented not only by means of a network of capacitors and resistors but also by means of a computer provided with analogue-to-digital and digital-to-analogue-converters.
The patent system would be reduced to mechanical engineering, electrical high power systems (where the electrical current does not transport information but merely energy) and chemistry including biotechnology.
Not very surprisingly, larger parts of the industry are not amused by any prospect to see the patent system reduced this way. And, most of the politicians would no longer support the anti-patent campaigners if they could clearly understand these consequences. Implementing Stallman's Utopia throughout Europe would be irresponsible, simpleminded and, therefore, insane.
But it seems as if for the anti-patent campaigners the time for researching the concepts of patent law has passed by. They are not interested in any such discussions. They have since long switched over to something like a political brute force approach to win the "patent war" by all means, in particular by their sheer numbers. This tactics even seems to include insulting and denouncing the people of a whole nation, say, the Irish, because of a certain disliked Commissioner presently in charge with the Directive is an Irishman.
Contrary to the facts as explained above, in particular on the Internet it appears to be common ground that in Europe patents on computer-implemented inventions are nothing else than "software patents" which are "illegal" because of they have been granted in violation of the provisions of the European Patent Convention (EPC) and of similar clauses in the national Patent Acts of various EU Member States banning patents on "computer programs as such". In this context, the efforts of the EU to harmonise the Law by means of the Directive on the patentability of computer-implemented inventions are denounced to be merely an attempt to change the law ex-post for "legalising software patents" in order to allow big multinational corporations to successfully sue Small and Medium Entities (SMEs) or even Free and Open Source Software (F/OSS) programmers on the basis of dubious claims which would not be enforceable without that EU Directive.
Such representations are, however, contrary to the facts.
All of the competent national Courts throughout Europe as well as the Boards of Appeal of the European Patent Office resembling a Court on top of the EPO have a long-standing tradition of issuing case law constantly accepting the patentability of computer-implemented inventions in general. All these bodies have refused to accept any opinion according to which patents on computer-implemented inventions would, in principle, violate the ban on patenting computer software as such. In fact, today there is merely a lack of agreement in particular how the required degree of technicality should be determined. The EU Draft Directive aims just to fix that problem on the basis of a snapshot of the case law of the Boards of Appeal of the European Patent Office as it stands now.
And it should be mentioned that, even without the EU Directive, such patents on computer-implemented inventions are, as a matter of routine, enforceable in the Courts like other types of patent claims, too. However, patent infringement cases are relatively rare events throughout Europe. And, in contrast to the US, in many countries (e.g. Germany) Court files are not per default open to the general public. Hence, it is not as easy to learn when another infringement case based on a patent on a computer-implemented invention has been launched.
And, there is no "double protection" when patents on computer-implemented inventions are granted. A patent is related to certain ideas and principles behind the actual fabric of the computer program code qualifying as an invention in the sense of the patent law, whereas copyright relates to the fabric as such. Hence, the subject-matter of patent law, on the one hand, and of copyright law, on the other hand, are completely distinct.
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