ITRE, McCarthy

[PILCH Hartmut <phm@a2e.de>]

Hello,

At 

        http://swpat.ffii.org/papers/eubsa-swpat0202/itre0212/

you find an analysis of the vote in the European Parliament's Industry
Commission which will take place on thursday.

At

        http://www.europarl.eu.int/

you can also find a list of MEPs and search for MEPs of your country
who are in ITRE.  

This week EICTA has sent professional lobbyists to Brussels to talk to
the MEPs.  They tell MEPs that they have a study which shows 97% of
software companies wanting software patents, and many MEPs believe
that EICTA is "the industry" and must be obeyed.  About the
decisionmaking in EICTA, you can find more at

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

to be completed further.

Especially if you work for a software company or can represent a
software company, you should send at least one MEP of your choice
a fax and begs for an opportunity to talk to the MEP or her
assistant.   

The vote in Rocard's CULT commission was largely in our favor, but
ITRE is traditionally more obedient to the big associations.

Moreover there will be a vote in JURI (legal affairs commission) one
month later, and the rapporteur Arlene McCarthy has just published
a new position paper, which is hardly better than the old one.

On the bright side, it does not attempt to change Art 5 of the
Commission's proposal, thus leaving literate information claims
outlawed.

On the other hand it argues for software patents and even more
explicitely so than the Commission.  One particularly revealing
passage is

  Although no consolidated data seem to exist concerning royalties for
  patents paid in Europe, the important thing about patents as far as
  companies are concerned is the protection of their R&D
  investments. Ericsson files more than 1,000 patents every year and
  almost all of them are computer-implemented inventions. Nokia
  estimates that 60-95% of their patent applications are for such
  inventions, whilst Alcatel estimates that 60 % of their inventions
  are for computer-implemented inventions and that the trend is
  upwards. In order to value how important patent protection is for a
  company, it is not unusual for companies with major R&D programmes
  to measure their patenting (internal) costs as a percentage of their
  R&D spend.  Some companies spend as much as 5-10% of their R&D on
  patents. This means that companies with substantial software-related
  R&D can be estimated to be spending as much as perhaps 10% of their
  overall R&D budgets on patenting.  Moreover, academic studies have
  shown a link between R&D spending, patent applications and
  productivity.

This takes up a similar argumentation in McCarthy's first papers,
according to which the weight of investments made that depend on
patents is the decisive factor.

According to our statistics at

        http://swpat.ffii.org/patents/stats/

Ericsson is in fact one of the biggest software patenters, but the
figures are rather at something like 100 per year rather than 1000.
The patents themselves are ridiculous like other software patents, see
e.g. Ericsson in

        http://swpat.ffii.org/patents/txt/ep/2002.en.html

but of course it is normal practise to correlate patent spending to
R&D spending, and it is also inevitable that productive companies will
have more money to spend on patenting.  And the correlation will be 
true no matter how ridiculous and unjustified the patents become.

Among the authorities on whom McCarthy relies are, besides people from
large telecommunication companies, also people patent offices who
supply her with data, such as

      In France, telecommunications and informatics accounted for
      around 12% of total patent applications and, in the UK, 810 out
      of a total of 12,517 published applications related to
      calculating, counting, checking, signalling and data-handling, a
      significant proportion of which probably relate to
      computer-implemented inventions.

I would bet that "calculating, counting, checking, signalling and
data-handling" is done with computers.  With what else?  It is also
interesting to note that Ms McCarthy wants software patents, but only
for "calculating, counting, checking ..." that contains a "technical
contribution" and is "not a pure algorithm".

Maybe Ms McCarthy should have consulted some more people who
understand computing.

Among the consultants are also economy experts with law degrees.
The following addition to Recital 8, sounds like a quote from
Prof. Dr. iur. Joseph Straus.  You find a very similar quote in

       http://swpat.ffii.org/archive/quotes/

       The competitive position of European industry in relation to
       its major trading partners will be improved if the current
       differences in the legal protection of computer-implemented
       inventions are eliminated and the legal situation is
       transparent. With the present trend for traditional
       manufacturing industry to shift their operations to low-cost
       economies outside the European Union, the importance of
       intellectual property protection and in particular patent
       protection is self-evident.

It is interesting to note here that McCarthy's intention is not merely
to "make transparent" but to provide "patent protection" which she
sees necessary for operations outside Europe.  Perhaps her friends
from Alcatel (cited above) informed her that Alcatel is in fact
pursuing a policy of shifting operations to places with low labor
costs such as China and to retain only administrative, finance and
of course patent departments in Europe for the time being.  They call
that policy the "fabless company".  Yet it is not self-evident that
this is a model of orientation, nor is it self-evident that patents
give Europe a competitive advantage against low-cost economies.  It
may be self-evident to lawyers like Straus, but economists will
tend to laugh at such assertions.

McCarthy is said to have produced her paper after a long period of
seclusion.  Fellow MEPs tried in vain to talk to her for the last
weeks and months.  She said she receives nobody.  Yet people say that
she did receive friends from some large companies and industry
lobbies, and the current paper seems to confirm this impression.

Some fellow MEPs in ITRE may make proposals that are even worse than
that of McCarthy.  E.g. Wuermeling and Niebler from the Bavarian
Christian Social Union have a great influence on the opinionmaking
of the largest party of the parliament, the European People's Party.
Both of them are even more loyal copy&pasters of so-called industry
proposals, including the proposal to introduce information claims.

Edmund Stoiber, who is the party chief of Niebler and Wuermeling,
recently gave a speech in which he accused the German government of
harming the transatlantic solidarity by experimenting with Linux, and
vowed that Bavaria would stay loyal to Microsoft, to which it owes so
much.  Stoiber said that Microsoft's decision 20 years ago to place
its European Headquarters near Munich has attracted many other IT
companies and made Bavaria an IT center in Europe.  I think Stoiber is
wrong, but many in his party, not only Niebler and Wuermeling, act as
if they were following this line.  It should not be forgotten that
Microsoft has become the top software patent applicant at the European
Patent Office, leaving IBM far behind, and that it is using these
patents for an aggressive strategy.

See the list at

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

It contains many patents that directly refer to languages and
standards which Microsoft is trying to push on the Internet.

Although depending on Microsoft in this way is the information-economy
equivalent of depending on OPEC for oil, leading politicians seem to be
completely insensitive to the danger, however evident and visible for
everybody it may become.

However it is not a good idea to talk about political scenarios when
writing to MEPs.  Talk about your personal experience and perspective.
Politics is their business and they don't like it when you are more
politically imaginative than they are.  But the fact that innovators
are saying "no thanks" to patents does make many of them think.

Please do send your fax, and send a copy of the text to info@ffii.org
if you like and tell us whether we can publish it.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608   
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
135,000 signatures against software patents      http://www.noepatents.org/