[Patents] 5 initiatives to control patent inflation

[PILCH Hartmut phm@a2e.de]

These initiatives have received support from major companies and
associations and favorable reports from the press in Germany, see

        http://www.heise.de/tp/

The details of the 5 initiatives and of the petition letter are still work
in progress.  Let's adapt it to the legislation of more countries and
cooperate on it.

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 "European Patent Corporation" rushing to introduce software patents via EU
                                 directive
                                      
      IT professionals spell out five legislative initiatives to bring
                       patent inflation under control
                                      
   
                           For immediate Release
                                      
   Munich, Berlin, Frankfurt, Ilmenau, Magdeburg
   
   The patent law experts of the European Commission have invited a group
   of patent experts from the national governments for a conference about
   the planned EC directive on the patentability of "computer-implemented
   inventions", i.e. software. Within the European Commission, the DGIM
   under commissioner Frits Bolkenstein is in charge of the matter.
   According to public announcements made by DGIM so far, DGIM wants to
   explicitely make the current practise of the European Patent Office
   (EPO) binding for all European courts by beginning of February at the
   latest.
   
   It is not known publicly who has been invited to attend the session in
   Brussels. However it is to be expected that the GDBM will present its
   plans and allow selected participants to speak, so as to reach a
   consensus for its position. From the side of the German government,
   the patent experts of the Federal Ministery of Justice (BMJ) are
   expected to attend. An [26]study conducted under the auspices of this
   ministery warns about devastating effects of software patents. A
   second study is scheduled to deliver results by mid of 2001. This
   indicates that the Federal Government can hardly be interested in very
   rapid decisions on the part of DGIM. Yet DGIM stresses the urgence of
   "harmonising the legal situation".
   
   On the relevant webpages of the GDBM it is written right at the top
   that the importance of the patent system as a motor of innovation
   "cannot be underestimated". The documents written by DGIM about the
   question of software patentability, starting from the Greenpaper of
   1997, are written in this spirit. Just like the European Patent
   Office, the BMJ patent division and other members of the of the
   "European Patent Corporation", the DGIM believes in the beneficial
   effect of all forms of "property". Its whole work is based on this
   simple belief. But during the last few years increasingly painful
   experiences and scientific study reports have shown that this belief
   is wrong. In 1999 the DGIM showed first reactions to growing
   criticism. It ordered an independent report from the London-based
   Intellectual Property Institute (IPI).
   
   The IPI is the patent establishment's mouthpiece, its board and
   membership being primarily composed of patent lawyers, judges, patent
   agents and large international firms with significant patent holdings.
   Even worse - IPI admits that its mission is to "fund research, the
   fruits of which will provide greatest benefit to the Institute's
   stakeholders". Also, Robert Hart, one of the authors of the IPI
   report, is a famous advocate of software patents who in 1997 prepared
   the grounds for the Greenbook with [27]particularly unscientific
   methods.
   
   No wonder then that the IPI report fails to take into consideration
   any scenario which would lead to less patents... Yet it does conclude
   that any argument for the extension of the patent system can not claim
   to rest on solid economic reasoning. The DGIM kept this study secret
   from March until October 2000.
   
   In view of growing criticism from colleagues within the European
   Commission, the DGIM finaly published the IPI study together with a
   "consultation paper" of its own, which restates the position of the
   European Patent Office. No reference to any numerous critical studies
   was made. Thus the patent law experts of various industry associations
   submitted statements, and the whole "European Patent Corporation" was
   mobilised. But also the critics [28]published hundereds of
   submissions. An [29]official statement of the Eurolinux Alliance with
   1000 pages of appendix was sent to Brussels.
   
   Even a large interdisciplinary team of researchers would take many
   weeks to evaluate all these submissions. The DBIM however can perhaps
   handle this faster. It consists only of a handful of patent law
   experts who skip any task except the one that they have been trained
   for: literally translating the dominant legal opinions of the
   "European Patent Corporation" into European laws. At the European
   Commission this is exceptionally easy to do. You needn't ask for the
   approval of any parliament. You just have to convoke the patent law
   experts from the national governments and reach a consensus among
   colleagues within the "European Patent Corporation".
   
   Under these circumstances, well known IT companies and associations
   have in an [30]open letter to numerous politicians in the
   German-speaking area formulated five law initiatives:
   
   Freedom to Publish original Information Works:
          Rights derived from patents may be used against the industrial
          application of computer programs but not atainst their
          publication or distribution. This can be achieved by a simple
          modification of national law.
          
   Freedom of Access to Communication Standards:
          When someone "sets standards" using software market power,
          these standards must be free of private claims. Representants
          of publis functions have to base their communication with
          citizens on open standards.
          
   Precisation of Patentability Criteria:
          The Lawmaker passes a resolution stating a [31]consistent and
          concise interpretation of Art 52 EPC and corresponding articles
          of national law. As far as necessary, lawcourts are brought
          back on the path of this interpretation, which represents the
          original spirit of the law, by explanatory amendments to patent
          laws.
          
   adequate systems for promotion of information innovation:
          Adequate systems for stimulating and rewarding information
          innovations and other mental labor are to be devised. This may
          mean a combination of soft exclusion rights, voting-based
          rewarding systems and a stronger public commitment to the
          funding of research and education.
          
   Debureaucratisation and Internationalisation of the Patent System:
          It is made possible to register patents instantly and free of
          charge by publishing them according to standardised
          requirements on the Net. On the other hand, a market for
          patentbusters is created. The polluter-pays-principle is
          established: the costs of the patent system are born by the
          owners of unjustified patents.
          
   The Federal Government is to be requested by parliamentary motions to
   work for the realisation of these goals.
   
   The Open Letter is founded on numerous compact appendices, through
   which the interested reader is led to further well founded sources of
   information. A [32]predecessor of this letter from August 2000 had
   contributed to establishing an anti software patent consensus of all
   parties represented in the German Federal Parliament. This time again
   the initiators are expecting broad support.
   
References

     * [33]Eurolinux Petition for a Software Patent Free Europe -
       http://petition.eurolinux.org/index.en.html
     * [34]Software Patents - http://swpat.ffii.org/indexen.html
     * [35]Robert Hart 1997, The Case for Patent Protection for Computer
       Program-Related Inventions, in: The computer law and security
       report, 13(4), 247-252 -
       http://swpat.ffii.org/vreji/papri/clsr-rhart97en.html
     * [36]Gesetzesinitiativen -
       http://swpat.ffii.org/xatra/patg2C/indexde.html
     * [37]EC Directive Proposal -
       http://swpat.ffii.org/stidi/eurili/indexen.html
       
About FFII - www.ffii.org

   [39]FFII is a non-profit association which promotes the development of
   open interfaces, open source software and freely available public
   information. FFII coordinates a [40]workgroup on software patents
   which is [41]sponsored by successful german software publishers. FFII
   is member of the [42]EuroLinux Alliance.
   
Press Contacts

   email:
          info@ffii.org
          
   Tel:
          Hartmut Pilch +49-89-18979927
          
Permanent URL for this PR

   http://swpat.ffii.org/news/patg2C
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References

  25. http://swpat.ffii.org/news/patg2C/patg2Cen.pdf
  26. 
http://www.sicherheit-im-internet.de/themes/themes.phtml?ttid=2&tsid=212&tdid=588&page=0
  27. http://swpat.ffii.org/vreji/papri/clsr-rhart97en.html
  28. http://petition.eurolinux.org/consultation
  29. http://petition.eurolinux.org/consultation/ec-consult.pdf
  30. http://swpat.ffii.org/xatra/patg2C/indexde.html
  31. http://swpat.ffii.org/stidi/eurili/indexen.html
  32. http://swpat.ffii.org/xatra/epue28/indexde.html
  33. http://petition.eurolinux.org/index.en.html
  34. http://swpat.ffii.org/indexen.html
  35. http://swpat.ffii.org/vreji/papri/clsr-rhart97en.html
  36. http://swpat.ffii.org/xatra/patg2C/indexde.html
  37. http://swpat.ffii.org/stidi/eurili/indexen.html