Bolkestein letter on swpat

[PILCH Hartmut <phm@a2e.de>]

At

        http://jriddell.org/eu-patents-letters.text

you published a recent reply by Frits Bolkestein to an inquiry about
the directive proposal.

I wonder whether you are aware of the analysis at

    http://swpat.ffii.org/papers/eubsa-swpat0202/

which preempts much of what Bolkestein answered.

Let me cite the answer and add a few comments.

  From Frits Bolkenstein (European Commission, Dutch) via Ian Hudghton (SNP 
MEP)
  16 April 2002

  Thank you for your letter dated 6 march 2002 in which you ask for
  comments on an e-mail from one of your constituents concerning the
  proposal for a Directive on the patentability of computer-implemented
  inventions which was adopted by the Commission on 20 February 2002.

  Your constituent seems to have misunderstood the purpose of the
  proposal and the legal background against which it operates.  It is
  not correct that software patents are `banned under the previous
  copyrights and patents directive'.  The only Community level
  legislation in this area existing to date is the directive 91/250/EEC
  of 14 May 1991 on the legal protection of computer programs.  However
  this Directive concerns only copyright law and has no effect on the
  law of patents.

  The situation concerning patents in the member States is governed
  principally by the European Patent Convention, which is an international
  treaty completely separate from the Community.  This provides that
  computer programs `as such' are not patentability, but legal decisions
  over the 25 years that the European patent system has been in
  operation have found that this exception does not extend to processes
  carried out by computers which have a technical character.

"legal decisions" ... a nice way to describe the EPO caselaw which
Bolkestein is proposing to legalise.

  The proposal was adopted by the Commission following an extended
  period of consultations going back several years.  A very wide range
  of views was received and taken into account during that process.  

No, they have not.
90% spoke against the kind of evident idiocy which Bolkestein wants to
legalise, and many of these 90% had relevant arguments, while the 10%
had no argued positions of their own, only patent mantras and applause
for the commission.
The 90% opponents had no impact on the decisions of the commission,
except perhaps on Art 4, which is treated as a formality by the directive.

  The
  conclusion that Commission came to was that there should be no
  extension of the scope of patentability to cover computer programs as
  such, but that the law should be harmonised largely on the basis of
  current practice in that interests of legal certainty and
  transparency, and to eliminate certain divergences which had arisen as
  national courts interpreted the Convention.

As we know the "current practise" of the EPO has extended the scope of
patentability to make computer programs, mathematical methods and
business methods as such patentable, and the results are not
siginificantly better or different from those of the USPTO.  The
proposed directive will make this legal and binding.

  Thus, the proposal will not make anything patentable which was not
  already patentable.  

It makes patentable what hitherto was only patented illegally, and it
makes it impossible to refuse such patents or to go back to a more
sensible practise in the future.

  In particular, mathematical algorithms cannot
  and will not be protectable under patent law.  

They are, according to what Bolkestein considers to be a valid "legal
decision", already patentable and patented en masse.

Also, the term "mathematical algorithm" is nonsensical.  It supposes
that some algorithms are non-mathematical.  But even if you assume a
naive separation between numbers and symbolic entities and say that
purely numeric algorithms are "mathematical" and symbolic ones are
not, then this directive proposal allows the patenting of mathematical
algorithms as such.

  Moreover, in one
  important respect, the Commission has decided that current practice
  goes too far and the proposal would provide that so-called `program
  product claims' whereby the protection conferred by a patent can
  extend to computer programs in isolation, should no longer be
  allowable.  

Even without such claims the "protection" proposed by CEC/BSA extends
to a program in isolation.

  In these circumstances, it is difficult to see how the
  Directive will increase the regulatory burden on businesses.

  As regard your constituent's other point, I can assure you that the
  Directive text was prepared by the services of the Commission, and
  that neither the Business Software Alliance nor any other organisation
  or individual was given privileged access during that process.  I am
  aware that a supposedly `leaked' draft of the text has been reported to
  bear the name of a member of the BSA's staff, but no credibility can
  be given to this story since the data field in question associated
  with a Microsoft Word document can very easily be modified at any time
  by anybody with `write' access to the file.

It could of course be that the government officials who received the
leaked draft conspired to add the name of Mingorance into the document
and then handed it to us in order to create a scandal.  But I don't
think they would do that, and apart from that, the traces of BSA can
be found quite clearly in the proposal.  Saying that nobody was
granted privileged access is also in contradiction to the CEC's
current practise of letting itself be represented by the EPO in the
ministerial council.  It is clear that the EPO is a faction in this
game, that this faction has privileged access to DG Internal Market,
and that this faction has a Standing Advisory Council (SACEPO), which
is again a factional organisation in which only the patent lobby is
represented.   Bolkestein seems to be telling us fairy tales.

  The adoption of the proposal is of course not the end of the story.
  The council and the European parliament now need to decide upon their
  position on this issue.

  Frits Bolkestein

-------------------------------------------

  From `Lord' Inglewood (Tory MEP)
  21 June 2002

  Thank you for your letter about the proposed EU directive on the
  patentability of computer implemented inventions.  Your concerns were
  forwarded to me by Struan Stevenson as I am the Party's Spokesman on
  Legal Affairs, the Committee responsible for this piece of
  legislation.

  As you will no doubt have gathered, the legislation in question is
  complicated and has given rise to much misunderstanding, leading to
  many people being wrongly informed about the Proposal.

  The proposal for this directive is not intended to allow the patenting
  of software which is not currently patentable, and equally
  significantly, now have earlier EU Directives specifically banned
  software patents.  The law on what is patentable is governed by the
  European Patent Convention (EPC).  This expressly excludes from
  patentability both business methods and `software as such' (but not
  technological innovations involving software for example in the
  controlling of mechanical tools).  This reflects the traditional
  position, which i that patents are for technological innovation.

  Thousands of patents have been granted by the European Patents Office
  and by member States' national patent offices for computer-implemented
  inventions  The UK Patent Office estimates that perhaps 15% of the
  patents it grants are software related.  Many of these patents are n
  the core areas of information technology, i.e. digital data
  processing, data recognition, representation and storage, as well as
  inventions involving programs which control processes in fields such
  as automotive and mechanical engineering.

  The background to the Directive is that the law on how far software is
  patentable has become unclear.  it is governed, as i have already
  mentioned, by the European patent Convention (EPC), which is over 20
  years old, during which time the technology has of course advanced
  enormously.  

None of these unclarities are in any way related to advances of
technology.

It is quite disappointing to see Lord Inglewood make himself a parrot
of this kind of crap. 

  Judicial and patent office efforts in the various EPC
  member countries to determine exactly which inventions involving
  software should be patentable have produced different results.  The
  result is widespread uncertainty.

The uncertainty arises from the fact that some, including the UKPO, 
want software patents and claim that the law allows them.
The price for this claim is of course that the law becomes a pile of 
meaningless words.
This kind of law interpretation can not be admissible.
Because the swpat propagandists know that, they want to change a law
which has become embarassing to them.a

  Both the UK Government and the Commission conducted consultations in
  the autumn of 2000.  You refer to the Government's conclusions of the
  UK consultation on software patents, available at
  http://www.patent.gov.uk/about/ippd/consulation/closed/index.htm  As
  the consultation showed, there are significant differences of opinion
  among the public, and business.  Although almost nobody disputed the
  need to clarify the law, there was disagreement about what is should
  say.  Broadly there were three schools of thought:

  1) That, as in the US, software should be patentable even where there
  is no technological innovation, so as to encourage the spur to
  innovate that patents provide (from some patent agents and a small
  minority of companies)

  2) That software should not be patentable - supporters (mostly
  individuals) pointed to the growth of `Open Source' software in recent
  years, whereby, broadly, software is made available on condition that
  no restrictions are places on its use by others;

This again is an attempt at confusing issues.
Open source software is characterised by the renouncement of
copyright privileges, not of patents. 
Also, the anti-swpat position is held by lots of people and companies
who engage in writing proprietary software.

  3) That the technical effect test is right - (a view held mostly by
  companies and representative boards) it would not make sense to deny a
  patent to an invention implemented in software when one would be
  available to an invention achieving the same thing but implemented in
  hardware.

This means that anything can be patented, because anything can be
implemented in hardware.

Indeed "implementability in hardware" has never been a criterion.
The criterion has been whether there is a new teaching about causality
of forces of nature rather than merely a new logical rule based on
known models.

  The central conclusion was to reaffirm the principle that patents are
  for technological innovation, so that software should not be

According to Lord Eaglewood (his position is in fact that of the
UKPO), anything is technological innovation.  So patents must be
available for all rules of organisation and calculation.

  patentable when there is no technological innovation, and that
  technological innovation should not cease to be patentable merely
  because the innovation lies in software.  However, there is a need for
  the law to express this more clearly, and for this clarification to
  take place as soon as practicable.  Methods of doing business should
  remain unpatentable.

This means that business methods are patentable.  Why should they be
unpatentable just because they are not implemented in hardware?

  Since then the Commission has proposed a Directive which reflects
  this view.  The stated purpose of the proposal they have published is
  to harmonise and clarify the law on the basis of the existing
  position.  The Proposal is close to that of the UK policy.  The UK
  Patent Office has invited comments from those who responded to the UK
  consultation in 2000, a copy of the invitation to comment, and links
  to the Commission proposal can be viewed on the Patent Office website
  at:
  http://www.patent.gov.uk/about/consultations/written/econsult16.pdf

  I do hope that is helps to answer your question.  if you have any more
  questions please do not hesitate to get back in touch with my office.

Why should the practise of the patent office have any weight in
determining what is patentable and what not?

On the UK situation, see also

   http://swpat.ffii.org/players/uk/

It is nice of Mr. Eaglewood to have obtained a response from
Mr. Bolkestein. 

Apart from that the reluctance of politicians to use their brain and
their willingness to undermine basic freeedoms without even insisting
on any macro-economic benefit, and to victimise minorities such as
software developpers is quite appalling.

There is a nice quote which fits here:

    http://internet.ggu.edu/university_library/if/Niemoller.html

    In Germany they came first for the Communists and I didn't speak up 
because I
    wasn't a Communist. Then they came for the Jews and I didn't speak up 
because I
    wasn't a Jew. Then they came for the trade unionists and I didn't speak 
up because
    I wasn't a trade unionist. Then they came for the Catholics and I didn't 
speak up
    because I was a Protestant. Then they came for me--and by that time no 
one was left
    to speak up. *

Mr. Eaglewood should speak up for freedom even though he is not a programmer.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608   
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
120,000 signatures against software patents      http://www.noepatents.org/