Re: [Patents] Openforumeurope.org clarifies swpat position

[James Heald <j.heald@ucl.ac.uk>]

Below is a letter that I emailed to the Register at the weekend, but it
looks as though they are not going to run it.  Probably it was too long
or too clumsy or too boring or too political (or all four).

It doesn't quite take the FFII line, but I thought it would have hit the
main points.

Anyhow, here it is for the archive, for search engines, and in case
there's anything anyone might want to cut or paste:

===========================================

Letter: Graham Taylor - Fool or Knave ?

(intended for publication; though I would be very happy if you tried to
put these points to Mr Taylor).


<p><br>
<p>Would Graham Taylor prefer us to take him for a fool, or for a knave
?

<p>In his <a
href="http://www.theregister.co.uk/content/4/30632.html";>defence of the
indefensible</a> he implied that support for MEP Arlene McCarthy's
proposals
was vital, to save open source interoperability; and that a position
which
denied software patents was "unlikely to succeed".

<p>This is complete misinformation, on both counts.

<p>But does Mr Taylor cynically know how disingenuous his comments are,
or
has he merely been caught out reading somebody else's script ?

<p><br>
<p>-- Limiting patentability --

<p>The changes proposed by Arlene McCarthy to the draft directive are
largely cosmetic, and if anything tend to further confuse, rather than
to
clarify it.  Like the Commission's draft, her proposals steadfastly
refuse
to take any stand on what should or should not be considered "technical"
and
therefore patentable, but systematically insist that everything must be
left
to caselaw, in effect just rubber stamping the race to patentability
that
has been going on at the EPO.

<p>The real reason that Mr Taylor's organisation was urged to begin
lobbying
MEPs so hard in January 2003 for the McCarthy proposals has more to do
with
December 2002, when both the Culture committee and the Industry
committee of
the EU parliament voted instead to recommend much clearer statutory
definitions, and significantly stronger restrictions on software
patenting.

<p>Thus for example the Culture committee's amendment <u>Am 11
(Cult)</u>
insists:

<blockquote>
"The use of natural forces to control physical effects beyond the
digital
representation of information belongs to a technical field.  The
processing,
handling and presentation of information do not belong to a technical
field".
</blockquote>

<p>Similarly the Industry committee's <u>Am 13 (Itre)</u>:

<blockquote>
"Member states shall ensure that the production, handling, processing,
distribution and publication of information, in whatever form, can never
constitute direct or indirect infringement of a patent, even when
technical
apparatus is used for that purpose".
</blockquote>

<p>and the same committee's <u>Am 11 (Itre)</u>

<blockquote>
"... Accordingly, inventions involving computer programs which implement
business, mathematical or other methods, which inventions do not produce
any
technical effects beyond the manipulation and representation of
information
within the computer-system or network, shall not be patentable."
</blockquote>

<p>It is these amendments, which have already won the support of a
majority
of MEPs on two committees, that are the real challenge to McCarthy's
draft
at the crucial vote of the legal affairs committee on Wednesday 21st
May;
and these amendments (certainly not the original Commission text) which
Mr
Taylor's co-lobbyists have been desperately trying to marshall their
defences against.

<p><br>
<p>-- Interoperability --

<p>Mr Taylor's other great claim for the McCarthy draft is that the
draft
would make it impossible for software patents to be used "to prevent the
development of Open Source alternatives to proprietary products".

<p>Again the truth is rather different.

<p>The relevant passage is Article 6, as amended by McCarthy (<u>Am 16
McCarthy</u>):

<blockquote>
Acts permitted <i>as exceptions</i> under <i>Articles 5 and 6 of</i>
Directive 91/250/EEC on the legal protection of computer programs by
copyright, in particular provisions thereof relating to decompilation
and
interoperability, shall not be affected through the protection granted
by
patents for inventions within the scope of this Directive.
</blockquote>

<p>McCarthy's change (the italics above) is trivial: merely adding seven
words to name the relevant articles of directive 91/250/EEC.

<p>More importantly the directive <a
href="http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEX
numdoc&lg=en&numdoc=31991L0250&model=guichett">91/250/EEC</a>, and its
UK
implementation (<a
href="http://www.jenkins-ip.com/patlaw/cdpa1.htm#s50B";>CDPA sec
50B</a>),
confers only the right to decompile a program to investigate its
interfaces,
and then only if the information is not otherwise readily available.

<p>But this is of little help in achieving interoperability when
interfaces
are patented: decompilation would be allowed; but actual interoperation
would be possible only by securing a valid licence for the patent.

<p>This key problem was recognised by the Industry committee, which
recommended the additional <u>Am 15 (Itre)</u>:

<blockquote>
"Member States shall ensure that whenever the use of a patented
technique is
needed for the sole purpose of ensuring conversion of the conventions
used
in two different computer systems or network so as to allow
communication
and exchange of data content between them, such use is not considered to
be
a patent infringement"
</blockquote>

<p>But Mr Taylor is urging MEPs to support the McCarthy draft, which
ignores
this.

<p><br>
<p>-- Wider considerations --

<p>Software patentability is about much more than Open Source.

<p>The fundamental reason that the software industry is now so
successful
and employs so many people is that it has seen a constant stream of
innovation changing the landscape, endlessly throwing up new
possibilities
and challenges for transforming and improving existing applications --
new
threats that existing market leaders are forced to respond to, or die.

<p>But what if those market leaders were protected by patents ?  As Alex
Hudson's website asks, <a
href="http://swpat.alexhudson.com/future/without_spreadsheets.html";>What
if
Visicalc had been patented</a> ?   How much poorer and more limited the
whole industry would be now.

<p>The software industry is too important to be allowed to be quietly
strangled and portioned out by patents.  To take up the words of a
recent <a
href="http://www.cs.chalmers.se/~bengt/petition.pdf";>petition signed by
31
distinguished professors</a> of Computer Science from across the
European
Union, we should urge the Members of the European Parliament to "adopt a
text that will make impossible, clearly, for today and tomorrow, any
patenting of the underlying ideas of software (or algorithms), of
information processing methods, of representations of information and
data,
and of interaction between human beings and computers".

<p>If Mr Taylor wants to keep any credibility that his organisation
really
does speak up for "business users of open source" and the "open source
supplier community" (rather than just the Intellectual Property and
Public
Affairs departments of the most powerful IT giants in the industry), the
least he could do would be to clarify his organisation's position on the
amendments <u>Am 11 (Cult)</u>, <u>Am 13 (Itre)</u> and <u>Am 11
(Itre)</u>
on patentability; <u>Am 15 (Itre)</u> on interoperation; and the four
specific exclusions called for by the distinguished professors.

<p>As for the rest of us, there are still nine days to go before the
vote;
the MEPs on the JURI legal affairs committee can be found <a
href="http://wwwdb.europarl.eu.int/ep5/owa/p_meps.entry?ilg=EN";>here</a>;
and the Eurolinux front page has some good suggestions about how to <a
href="http://www.eurolinux.org/";>lobby with maximum effect</a>.

<p>Yours sincerely,

<p>James Heald.


<p><br>
<p>Further information:
<br>The full range of amendments being considered by the EU Parliament's
legal affairs committee (JURI) can be found <a
href="http://www.europarl.eu.int/meetdocs/committees/juri/20030422/juri20030
422.htm">here</a> (in eleven languages) under item 11 on the agenda.