[Patents] Re: [FYI] BMWi Workshop on SWPAT

[phm@a2e.de (PILCH Hartmut)]

On Wed, 11 Jul 2001, Axel H Horns wrote:

> On July 10, 2001 an expert workshop was held by the German Federal
> Ministry for Economics and Technology in Berlin. About approximately
> some 60+ attendants listened the presentation of preliminary results
> of a study jointly conducted by Fraunhofer Institute for Research on
> Systems and Innovation (ISI), Karlsruhe, and by Max Planck Institute
> for Foreign and International Patent, Copyright and Competition Law,
> Munich.
>
> Among the attendants were a lot of Officials from the German Federal
> Ministry for Economics and Technology (BMWI) as well as from the
> German Federal Ministry of Justice (BMJ) and from the Italian and
also French
> Swedish Governments. Moreover, Officials from the German Patent and
> Trade Mark Office (DPMA), from the European Patent Office (EPO), from
> the UK Patent Office, from the Danish Patent Office, from the
> Austrian Patent Office, and from The National Board of Patents and
> Registrations of Finland were also seen there as well as two judges
> from the German Federal Patent Court (Bundespatentgericht). A
> representative of the CEC was present. Also some Patent Attorneys and
> representatives of the Industry attended.
>
> The BMWI had invited patent critics from the Free Software scene,
> namely Mr. Pilch from ffii e.V. as well as Mr. Gerwinski from the
> Free Software Foundation Europe e.V. (FSE), not to forget Mr. Ebinger
> and Mr. Siepmann from the Linux Verband e.V.
>
> I attended together with Prof. Lutterbeck and Mr. Gehring, both of
> Technical University Berlin, in my capacity as co-author of a prior
> study ("Kurzgutachten") on that matter which had been delivered to
> BMWI in December 2000.

        http://swpat.ffii.org/vreji/papri/bmwi-luhoge00/

> The study presented on a preliminary basis in Berlin consisted of two
> parts:
>
> - A legal comparative study on patent law in Europe, Japan, and
> United States in view of patenting software-related inventions,
> provided by MPI and presented by Prof. Straus and Mr. Nack, and

basically
- the assertion that the law is unclear and any attempt at
  delimiting patentability is pointless
- a large overview of court decision which are statistically
  evaluated by what kind of ideas were declared as patentable or not
- an implicit normative reinterpreation of these factual findings

> - An empirical (economical) study on the implications of granting
> patents in the software sector provided by the ISI and presented by
> Mr. Edler and Mr. Blind.

basically a survey, based on a long questionnaire which asks software
companies and developpers about their business models and especially the
importance of patents and free software within those business models.

> The Berlin workshop was chaired by Ms. Weber-Cludius of BMWi.
>
> It seems to be clear that the German Government is undertaking a very
> broad in-depth preparatory work in order to clarify this rather
> complex subject-matter before attempting to define the final German
> position with regard to the anticipated EU directive as well as to
> the "Second Basket" of another EPC Revision Conference.
>
> The fact that despite earlier announcements the CEC still has not yet
> presented any draft for the planned directive seems to give more room
> for extended preparatory work.
>
> No final political proposals of the ISI/MPI study have been presented
> in Berlin. They said that the results of the discussion on the
> workshop might be considered when drafting the final version.
>
> Generally the self-assessment of those who filled in and returned the
> ISI questionnaire was such that there is a broad feeling of lack of
> knowledge with regard to the way in which the patent system works.
> Hence, all more detailed results of the questionnaire survey have to
> be weighed with that fact that those providing the answers feel that
> they don't have much insight into the patent system.
>
> A result seems to be that from an overall perspective currently
> patents don't play a big role in software business in Germany -
> neither actively (patenting own inventions and enforcing such own
> patents) - nor passively (defending against patent of a competitor).
> There is no general sympathy for the U.S. patent system; a global
> harmonisation on the level of current European practice would be
  ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

Didn't you say before that European companies "don't have much insight
into the patent system" ?

Software companies are currently not faced with a lot of patent litigation
and they would like things to stay that way.

To interpret this attitude as an endorsement of current-day EPO practise
is deeply dishonest.

The survey questionnaire adopts a misleading MPI explanation suggesting
that current-day EPO practise on software patents is significantly more
restrictive than that of the US.  The MPI study goes a long way in trying
to create meaningless statistics to support this false assertion.
Offering respondents a look at a few European patents, such as those in
the

        Horror Gallery of European Software Patents
        http://swpat.ffii.org/vreji/pikta

or a random sample of European software patents would have been more
meaningful.

The MPI method here is very strange:  they take an average from court
decisions of the last 20 years and then say that the EPO tends to be
reluctant on granting patents on text processing, translating, business
methods etc.  Several patent lawyers present at the Berlin hearing
correctly pointed out that this is misleading, because it creates a wrong
impression about what can be patented today.

This dishonesty becomes even more apparent when the MPI people recommend
the deletion of the "programs for computers" from the list of
non-inventions:  they are quoting people who want to continue to be
unbothered by software patents in support of unleashing a huge number of
currently dormant software patents onto the European market.

The whole purpose of this exercise seems to be the same as that of similar
exercises at the EU level:  to enable legislators to get away with
legalising software patents while pretending that they are just
maintaining the status quo.

> preferred by many software companies. There is virtually no sympathy
> for pure business method patents anywhere in the software branch.
>
> In particular, the empirical work of ISI has clearly uncovered a
> consensus within the software branch that Free Software ("Open Source
> Software") is expected to considerably gain importance in economical
> terms in the entire software world within next coming years. OSS
> developers as well as other non-OSS freelance programmers were
> identified as a group having the strongest fears and reservations
> against negative effects of the interference of the patent system
> with the software business. The empirical study seems to make clear
> that these facts should be taken into consideration when making final
> political decisions.
>
> There was no clear indication how the result of the comparative legal
> study of the MPI can seamlessly be interwoven with the economical
> language of the ISI in order to obtain workable political proposals.

The problem here is that they have not investigated the possibilities of
limiting patentability.  The MPI people just claim that it can't be done,
and neither the ISI nor the MPI people have presented any example patents
or made any assessment of which kinds of patents could be favorable or
unfavorable for software innovation, let alone formulate a rule.

Of course without such a rule, there is no interface between economics and
law.  It would therefore have been more appropriate to conduct two
separate studies.  Moreover it should have been made clear that these
studies are about some very limited aspects of the debate.  They do
succeed in presenting some insights on those aspects, but that is not
enough to arrive at the kind of insights that our politicians seem to be
asking for.

Here definitely the French study

        http://www.pro-innovation.org/rapport_brevet/

is much more interesting.  Too bad the authors were not invited to
introduce it.

It looks as if our politicians are avoiding the pressing questions in
order to arrive at studies which allow them to avoid making decisions. All
studies so far ordered do a good job at explaining the importance of the
two loudest lobby groups and aside from that doubtlessly provide some
interesting insights, but fail to ask let alone answer sharp questions
such as those listed under

        http://swpat.ffii.org/stidi/

> Moreover, attendants might get an impression that ISI and MPI have
> suffered some difficulties in finding a common political ground for
> elaborating any common more-than-declaratory proposals to be
> delivered to BMWi based on their respective findings. We shall wait
> for the final report and see.
>
> The workshop ended with a presentation held by Mr. Webb of the UK
> Patent Office on the results of the general UK consultation on
> Software and Business Methods Patents.
>
> No simple consensus was perceivable in the results thereof. There is
> a strong feeling that patent law needs clarifying with regard to
> software inventions. No patents on pure business methods are wanted.

Here again, a trick is being played with ambiguous terms such as "status
quo" and "the law".

When respondents with limited knowledge about patent law agree that

        clarification is needed

this does not mean that the law is unclear.  It only means that the
current rules applied by the courts are unclear.  One way to clarify them
would be to return to the law and to the doctrine of the
Dispositionsprogramm decision posted here earlier.  But this choice was
not offered to the respondents, nor would most of them have understood it.
I am quite unsure whether the ISI people themselves understand it. The MPI
people of course do understand, but they are staunch pro-swpat lobbyists
with deeper vested interests than the UKPTO.  See also their EU
consultation paper

        http://swpat.ffii.org/vreji/papri/eukonsult00/planck/

When respondents agree that

        we want to stay with the status quo

this means "we want to stay in a situation where patents do not play a
role in our industry" and not "we want the whole power of the European
Software Patent horror gallery, as already granted by the EPO, to be
unleashed."

Although the British consultation was conducted in a much more decent and
common-sense way than the EU consultation, it is still employing the same
cheating tactic.  They even fail to distinguish between the fairly
conservative British practise and the US-like practise of the EPO. The
tactic does not become any better by the fact that the ISI people are
also allowing it to be employed in their study.

--
Hartmut Pilch                                           http://phm.ffii.org/
Protecting Innovation against Patent Inflation        http://swpat.ffii.org/
80000 signatures against software patents         http://www.noepatents.org/