Re: [FYI] European Parliament hearing on patentability of computer implemented inven

[PILCH Hartmut <phm@a2e.de>]

> http://www.aippi.org/reports/report_eu_nov_02.pdf
 
> European Parliament hearing on patentability of computer implemented 
> inventions 
 
> The second group of speakers representing industrial interest groups 
> were strongly controversial in their opinions. The first speaker of 
> EICTA, which represents more than 10.000 software companies in 
> Europe, with more than 1.500.000 employees and annual revenues of 
> over 190 billion Euros, strongly called for harmonisation of the 
> patent system. 

What is this representation claim based on ?

We of course only needed to listen to the speech of Mr. Hagedorn,
patent lawyer of SAP, to know that he represented neither the members
of EICTA associations nor his own company but only the consensus of a
small community of software-specialised patent lawyers.  More
indications of how decisions on such special matters are taken in
EICTA, UNICE and the like are found on

        http://swpat.ffii.org/events/2002/europarl11/

> The exclusion of programs for computers as such from 
> patent protection in Art. 52 of the EPC and the respective provisions 
> of the national patent laws have led an important number of European 
> companies to the misunderstanding that any kind of software program 
> would be excluded from patent protection. These companies do not 
> profit from patent protection. This is a great handicap regarding 
> competition, especially with U.S. companies. 

Indeed Hagedorn said something similar to that in style and content.
When reading Freischem's text you don't know whether this is
Freischem's opinion or that of Hagedorn.

> The directive can now 
> provide harmonisation and certainty in applying patent protection to 
> software inventions containing a technical contribution. This speaker 
> strongly called for the acceptance of claims directed to computer 
> program products, as only those claims would provide appropriate 
> patent protection against infringement. He did not fear any negative 
> effects for small and medium enterprises (SME) and open source 
> programmers, pointing out that those enterprises already exist and 
> indeed grew considerably under the current patent environment (of the 
> EPO) which largely corresponds to the draft directive. SMEs could 
> profit from the patent system if the general knowledge of software 
> engineers about patent protection could be enhanced. Mr. N'Guyen from 
> UNICE expressed a very similar view.  
> 
> Whereas most speakers tried to meet their scheduled speaking time, 
> the open source representative did not hesitate to triple his 

Note that Freischem eagerly adds the epitheton "open source representative"
at every instance, even in his list of speakers at the beginning.  As if
the name "EuroLinux" was still not good enough for the purpose.

> speaking time. With great enthusiasm and very few objective arguments 
> he continued the fight of his interest group against the patent 
> system, accused the European patent examiners of illegally granting 

Certainly I didn't accuse any examiners.

> software patents and claimed that he ? not EICTA ? represents the 
> majority of innovative European software enterprises. He accused the 
> patent system of generating trivial patents or patenting known 

Triviality and lack of novelty are Greg's themes, not mine.
I stressed that once you loosen the requirement that forces of nature
be part of the problem solution you will end up getting very 
unbalanced claim scopes where a patent holder will either get nothing
valuable (only an expensive copyright) or excessively broad claims
which, no matter whether his work was trivial or not, represent a
huge obstacle to software development which is not commensurate to
any contribution which the patentee might have made.

> methods in the field of software. He rejected patent protection for 
> any kind of software program as lethal to the economic activities of 
> his interest group but left open why open source software remained 
> successful and unharmed under the current system applied by the EPO 

I didn't leave that open at all but in fact cited a list of examples
of harm already done to software (not only but including "open source
software").  Also, I made it credibly clear that the Eurolinux Alliance
and our "Call for Action" etc represent more than "open source software". 

> as well as, for example, the German and British patent systems, all 
> of which largely correspond to the proposed directive.  

Freischem prefers reporting his own opinions to reporting ours.
Maybe we can't blame him for that, but as the head of the German section of
the association which claims to represent the whole patent world

        AIPPI
        http://swpat.ffii.org/players/aippi/

he should do better.  Patent professionals are interested in obtaining
real information, and not all of them have a vested interest in
blurring the limits of patentability.  Many would prefer to continue
working in areas where the system works reasonably well and will not
lead to much public controversy.

Freischem's report tries to achieve two opposite goals at the same time:

  1 portray the opposition to swpat as insignificant
  2 portray the opposition to swpat as extremely powerful

Goal 1 is needed in order to be able to continue evangelising in countries
such as Poland and telling them to join the EPO's bandwagon.

Goal 2 is needed in order to be able to rally the patent lobby.
Freischem finishes his texts by rallying calls, warning that "those
software companies which profit from the system" must talk to their
MEPs and "not leave the field to the opensource activists" who have
managed to send a powerful mixture of signals to the European
Parlament which may create a "snowball" effect.

This desperate lobbying call is necessary, it seems to me, because
Freischem feels very well that his lobby is losing ground and the
message has gotten across that 

(1) EICTA, UNICE & Co do not represent the "economic majority"
(2) software patents do not promote innovation
(3) the patent judiciary should not be handed a carte blanche
    for defining at whim what is "technical", i.e. what may be
    used as a basis for infringing on the human rights of 
    the software creators = the general population.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608   
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
130,000 signatures against software patents      http://www.noepatents.org/