[Patents] FICPI presses for software patents and grace period

[PILCH Hartmut phm@a2e.de]

FICPI (Federation Internationale des Conseillers en Propriete Intellectuelle)
passed several resolutions for further worldwide uniformisation and expansion
of the patent system, among others in the area of software patentability,
business methods and a grace period.

Among others, FICPI demands from the European diplomatic conference (November
20-29 in Munich) that

- business method patents be granted worldwide
- publication of source code constitute a direct infringement worldwide
- a grace period be introduced worldwide

FICPI is the kind of group that our governments are likely to listen to,
because the decisionmakers within these governments are either members of
FICPI or closely affiliated to the community that FICPI represents.


http://www.ficpi.org/ficpi/newsletters/45/resolengl.html

   At its World Congress at Vancouver 12-16 June 2000, FICPI adopted
   the following resolutions:
   RESOLUTION A:
   PRIVILEGE
   
   FICPI, the International Federation of Intellectual Property
   Attorneys, broadly representative of the free profession of more than
   70 countries, assembled at its World Congress held in Vancouver from
   June 12 to June 16, 2000, passed the following Resolution :
   
...

   Urges appropriate authorities in countries or regions which do not now
   afford such protection to amend their laws as necessary to provide
   legal professional privilege in relation to communications between a
   client and a registered Intellectual Property Practitioner or
   practitioners who are members of an accredited professional
   association, and that all countries should recognize the legal
   professional privilege that exists in other countries,
   
   And urges appropriate authorities in countries and regions to amend
   their laws to establish an appropriate system of recognition of
   qualified intellectual property practitioners.
     _________________________________________________________________
   
   RESOLUTION B:
   UNIFORM PROCEDURE FOR PATENT ENFORCEMENT
   
...   

   Resolves that international and regional authorities, governments and
   judiciaries should take steps to establish a uniform standard for
   determining the scope of protection afforded by a patent.
     _________________________________________________________________
   
   RESOLUTION C:
   OFFICIAL SURPLUS 


   ...
   (patent office surpluses should not be seized by governments but used
    by the patent offices for improving their work)
   
     _________________________________________________________________
   
   RESOLUTION E:
   MAINTAINING THE QUALITY OF PATENT OFFICE WORK
   
   ...
     _________________________________________________________________
   
   RESOLUTION F:
   BUSINESS METHODS
   
   
   
   
   FICPI, the International Federation of Intellectual Property
   Attorneys, broadly representative of the free profession of more than
   70 countries, assembled at its World Congress held in Vancouver from
   June 12 to June 16, 2000, passed the following Resolution :
   
   Taking note 
    a. of the proposal for removal of the exclusion from patentability of
       inventions relating to computer programmes as such from the list
       of exclusions in Article 52(2) of the EPC in connection with the
       upcoming revision of the Convention, and
    b. the development of law and practice in the United States with
       respect to patenting of innovations relating to electronic
       commerce,
       
   Having considered
    a. the significant differences between the approach taken within the
       existing framework of the US Patent System and maintenance of the
       exclusion of business methods from patenting in patent legislation
       in Europe and the risk of distortion of global trade that may be
       caused by such differences,
    b. the development of patenting practice in Europe and Japan leading
       to grant of patents on computer or on software operated business
       methods, and
    c. the US approach including the business method patent initiative
       action plan published by the USPTO,
       
   Resolves that to secure adequate IP protection to commercially highly
   valuable innovations in information technology as applied in any
   sector of business, including financial and E-commerce sectors, there
   is an urgent need to harmonize conditions for patent protection in
   this field, and

According to the patent lawyers, anything that can be commerciall exploited
needs to be patentable.  This is in line with the EPO's base proposal.

   Urges relevant authorities at the global, regional and national
   levels, including WIPO, WTO, the Commission of the European
   Communities, the Administrative Council of the European Patent
   Organization, USPTO and JPO to undertake efforts to promote such
   harmonization.
     _________________________________________________________________
   
   RESOLUTION G:
   INTERNATIONAL GRACE PERIOD
   
   ...   
   FICPI, the International Federation of Intellectual Property
   Attorneys, broadly representative of the free profession of more than
   70 countries, assembled at its World Congress held in Vancouver from
   June 12 to June 16, 2000, passed the following Resolution :
   
   Taking note of the successful conclusion of the Patent Law Treaty on
   June 2, 2000 and welcoming the future implementation of the Treaty in
   national and regional patent legislation world-wide as a vital
   instrument to further harmonization of formalities and procedural
   provisions for the filing and prosecution of patent applications,
   
   Having considered 
    1. the development of patent law at the national and regional level
       to meet the needs of business caused by the rapidly increasing use
       of information technology, including in particular the use of the
       Internet for exchange of information within the scientific and
       technological community, and
    2. the forthcoming revision of the European Patent Convention to be
       concluded at the Diplomatic Conference from 20th to 29th November,
       2000,
       
   Confirms its previous and continued support for a harmonized
   international grace period,

According to the expert opinion of patent lawyer Galama in

          http://www.epo.co.at/news/headlns/2000_07_25_e.htm

it is precisely the Internet which makes a grace period a bad idea, because
this medium will allow other people to build on the idea during the grace
period very quickly without knowing anything about pending patent threats. 

It is interesting that FICPI uses the quickening of communication as an
argument for the grace period.

   Resolves that urgent reconsideration of the introduction of an
   international novelty grace period into the laws of as many
   territories as possible should be undertaken as an initial step to
   further the development and harmonization of substantive patent law in
   step with the development of technology and industry, and
   
   Urges the Commission of the European Community and the Administrative
   Council of the European Patent Organization to take appropriate and
   urgent measures to promote such reconsideration.
     _________________________________________________________________
   
   RESOLUTION H:
   SCOPE OF SOFTWARE PROTECTION
   
   
   
   
   FICPI, the International Federation of Intellectual Property
   Attorneys, broadly representative of the free profession of more than
   70 countries, assembled at its World Congress held in Vancouver from
   June 12 to June 16, 2000, passed the following Resolution :
   
   Taking note 
    a. of the increasing activity in patenting of computer and software
       related innovations in all fields of business and technology, and
    b. the removal of restrictions or exclusions from patenting of
       computer programmes as such in patent legislation worldwide in
       compliance with WTO member states of obligations under the TRIPS
       Agreement,

On the TRIPS fallacy, see http://swpat.ffii.org/stidi/trips/
       
   Having considered 
    a. that when patent claims on such innovations are directed to a
       method for performance of operations and/or a system for
       implementation of such method, the definition of the scope of
       protection will typically include features or elements additional
       to the features or elements integrated in the software innovation
       itself, and
    b. that, under existing statutory definitions, such definition of the
       scope of protection implies that unauthorized use of the invention
       by a third party will amount to an act of contributory
       infringement only, and
    c. that in many countries the enforcement of patents against acts of
       contributory infringement is limited to the performance of such
       acts in respect of use of the invention as a whole (method or
       system) within the national jurisdiction,
       
   Welcoming the development of practice in the EPO to accept patent
   claims directed specifically to the software product in which the
   innovation is enshrined,

i.e. welcoming the self-contradictory and illegal practice of the EPO.
Self-contradictory because a software patent infringes on itself, as soon as a
fully-enabling implementation example (i.e. a reference implementation) is
supplied in the patent description.

   Resolves
    a. that there is a need for worldwide harmonization on the
       enforceability of protection for patents on computer or software
       related inventions, and
    b. that the protection afforded must be relevant to commercial
       realities and commensurate with the contribution to the art made
       by the inventor, and
       
   Urges relevant authorities at the international, regional and national
   levels to provide an harmonized definition of the rights conferred by
   a patent that takes into account such commercial realities.

This is a polite way of demanding that censorship of source code on the 
Internet
must be introduced at a worldwide level.

-phm