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- From: Hartmut Pilch <phm@a2e.de>
- To: patents@aful.org
- Subject: [ffii] JURI vote: documentation & PR
- Date: Wed, 18 Jun 2003 18:49:13 +0200 (CEST)
FFII News -- For Immediate Release -- Please Redistribute
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_________________________________________________________________
EuroParl 2003/06/17: JURI votes for Fake Limits on Patentability
The European Parliament's Committee for Legal Affairs and the Internal
Market (JURI) voted on tuesday morning about a list of proposed
amendments to the planned software patent directive. It was the third
and last in a series of committee votes, whose results will be
presented to the plenary in early september. The other two commissions
(Culture, Industry) had opted to more or less clearly forbid software
patents. The JURI rapporteur Arlene McCarthy MEP (UK socialist) also
claimed to be aiming for a "restrictive harmonisation of the status
quo" and "exclusion of software as such, algorithms and business
methods from patentability". Yet McCarthy presented a voting list to
fellow MEPs which turns ideas of the Amazon One-Click type into
patentable inventions. McCarthy and her followers rejected all
amendment proposals that limit patentability while supporting all
those which go even beyond the European Commission's proposal in
imposing unlimited patentability and patent enforcability in Europe,
ensuring that Europe will have the most laxist and rigid software
patentability law of the world and little chance of recovery for years
to come. Most of McCarthy's proposals found a conservative-socialist
2/3 majority (20 of 30 MEPs), whereas the proposals from the other
committees (CULT, ITRE) and study reports commissioned by the
Parliament and other EU institutions were disregarded. A few
socialists and conservatives voted together with Greens, Left and
(partially) Liberals in favor of amendments which limit patentability,
but they were overruled by the two biggest blocks, which followed the
instructions of Arlene McCarthy and EPP shadow-rapporteur Dr. Joachim
Würmeling.
For immediate Release
Please feel free to copy without attribution
Brussels, 2003/03/17
Introduction
-> [11]FFII: Software Patents in Europe
For the last few years the European Patent Office (EPO) has,
contrary to the letter and spirit of the existing law, granted
more than 20000 patents on computer programs, i.e. rules of
organisation and calculation framed in terms of generic
computing equipment. Now Europe's patent community is pressing
to codify this practise into a new law. Europe's programmers
and citizens are facing considerable risks. Here you find the
basic documentation, starting from a short overview and the
latest news.
What happened in JURI
-> [12]juri030617.pdf
JURI report about result of the vote, converted to PDF from
MSWord document.
-> [13]sound recordings of JURI sessions
please listen to second Rothley comment on mon 16: JURI is a
sausage machine
-> [14]Arlene McCarthy 2003/06/17 Voting List
supports all amendments that further weaken limits of
patentability and strengthen patent enforcability even beyond
the CEC proposal, opposes all amendments that provide a means
of limiting patentability or patent enforcability.
-> [15]Liberal Group (Manders) 2003/06/17 Voting List
supports many good amendments from CULT and ITRE along with a
few McCarthy amendments. Contradictory on some points, e.g.
supports both program claims and freedom of publication.
-> [16]JURI 2003/04-6 Amendments: Real and Fake Limits on
Patentability
Members of the European Parliament's Commission on Legal
Affairs and the Internal Market (JURI) submitted amendments to
the European Commission's software patent directive proposal.
While some MEPs are asking to bring the directive in line with
Art 52 EPC so as to clearly restate that programs for computers
are not patentable inventions, another group of MEPs is
endorsing the EPO's recent practice of unlimited patentability,
shrouded in more or less euphemistic wordings. Among the
latter, some propose to make programs directly claimable, so as
to ensure that software patents are not only granted but
achieve maximal blocking effects. If patentability is to be
limited, the following amendments need to be approved: 4, 5, 9,
17, 18, 20, 22, 23, 24, 25, 26, 27, 28, 31, 32, 33, 34, 35, 39,
40, 41, 43, 45, 46, 48, 51, 52, 54, 59, 63, 65, 68, 70, 71.
Cult4, Cult5, Cult6, Cult9, Cult11, Cult18, Itre1, Itre2,
Itre3, Itre11, Itre14, Itre15, Itre18.
Statements from Industry and Academia
Håkon Wium Lie, CTO of Opera Inc
Håkon Wium Lie, CTO of [26]Opera Inc comments on [27]Arlene McCarthy's
voting list:
Arlene McCarthy and her followers seem determined to kill
interoperability on the World Wide Web and to strengthen large
US-based monopolies. At the World Wide Web Consortium (W3C), we
have been struggling with patent policy questions for years. The
Industry Commission proposed to exempt the use of software for
interoperability purposes from the scope of patent enforcability.
This could have been extremely helpful for standardisation. It
would also have helped to avoid some of the worst anti-competitive
practises. And it wouldn't have cost the patent owner lobby very
much. Yet they discarded even this very moderate amendment without
even giving a reason. Our representations to the parliament have
been completely ignored. The JURI rapporteur's lawmaking clearly
has nothing whatsoever to do with the interests of the European
software industry.
Richard Clark, CEO of Elysium Co Ldt and chief editor for the JPEG
standardisation committee
The members of the JPEG committee have spent years fighting off
frivolous patent claims that have partially succeded in destroying
our standardisation efforts. With the new regulation proposed by
JURI, we are in for even more trouble. The European Patent Office
(EPO) has shown no more mercy to the software industry than the US
Patent Office (USPTO), but their patents have so far been
considered invalid in much of Europe. Now, according to Arlene
McCarthy's voting list, we will not only be forced to regularly
face litigation on broad and trivial software patents according to
EPO/USPTO standards in Europe. We will also know for sure that
there is no exemption for the purposes of interoperability. While
in the USA there is hope that courts will give in to mounting
pressure of public opinion and reform to some extent, the JURI
Commission is preparing to codify the state of the art in current
patent office malpractise. This would allow US corporate
landgrabbers to go on desertifying the European IT landscape while
the US is already moving to recover from the catastrophe.
Dr. Bernhard Runge, senior developper of SAP AG and former professor of
computer science
SAP has suffered a lot from US patents on what under this directive
would probably be "computer-implemented inventions with a technical
contribution in their inventive step". SAP has grown big by
copyright, and being imitated was never seen as a big problem. We
do not need protection by patents but rather protection from
patents. SAP had to pay exorbitant extortion sums to some
individual patent owners (among them professors from well known
US-universities) with high criminal energy. Software patents
legalize and encourage criminal or immoral behaviour in the
software industry. There are probably nearly no non-trivial
software patents. Therefore the only reasonable use of software
patents is to have weapons for conflicts between companies ("you
have infringed my 100 patents [admittedly trivial and meaningless -
which we will never say in public], we have infringed your 100
patents [also admittedly trivial and meaningless - which you will
never say in public], therefore let's forget this conflict and make
sure, that nobody else will disturb both of us"). The armaments
race imposes high costs for all software companies. SAP had to
install a patent department for defensive purposes in 1998 and is
now regularly divert money to this department, which could
otherwise have been spent on R&D. However, even a high number of
patents does not help us against individuals with high criminal
energy.
Our patent lawyers have meanwhile persuaded some people in the
managment that having a directive to allow us to play the software
patent game in Europe as well is good idea. But I think they are
wrong and their thinking will not prevail in the company.
Contrary to what some of the directive's proponents say in public,
this directive make algorithms and business methods patentable. How
could it be otherwise? What else can there to patent in our
software, if not algorithms and business methods?
Bernhard Kaindl, developper at SuSE Linux AG
Leading JURI committee members are not satisfied with putting the
software industry at risk. They also want to make sure that every
programmer will run afoul of patents as soon as he publishes a program
on the web. While CULT and ITRE introduced safeguards for the freedom
of publication, Arlene McCarthy is flatly ignoring these safeguards
and instead recommending "compromise amendment 1", which makes
publication a direct infringment. It seems almost entrepreneurially
irresponsible to go on selling Linux distributions under these
conditions. If one of thousands of programs in our distribution
infringes on one of tens of thousands of broad and trivial software
patents granted by the EPO, we can be sued and forced to take our CDs
from the market. Similar cases have already arisen due to trademarks,
but legal insecurity around patents is far greater. Cases such as SCO
and EBay show that the danger is not merely theoretical. At a moment
where public administrations are introducing free/opensource operating
systems or using them to pressure Microsoft into price reductions,
Arlene McCarthy and her allies seem to be joining Microsoft in its
crusade to suppress free software. Bavaria's Christian Social Union
appears to be instrumental in this and has at the same time been
[28]pushing the Microsoft cause in Bavaria. Arlene McCarthy herself
has openly [29]attacked the GNU General Public License as "just
another form of monopolism". McCarthy and her ally Dr. Joachim
Würmeling have declined all invitations for dialog from our side and
refused to reply to our questions. They are of course not obliged to
talk to us. However, strengthening monopolies by handcuffing
competitors is about the worst thing a government can do against
itself.
Dr. Karl-Friedrich Lenz, Professor for German Law and European Law, Aoyama
Gakuin University, Tokyo:
The European Parliament seems to be set to ignore the more than one
hundred thousand signatures of European citizens opposing software
patents and go ahead with legalizing them anyway. If that happens, we
will see large license payments from the European to the American
software industry, lots of litigation based on software patents,
Internet patents and business method patents, and some very
unfavorable effects for open source software. And introducing a large
number of new monopoly rights in the information society sector
certainly won't help with the EU strategic goal "to become the most
competitive and knowledge-based economy in the world."
see also [30]Lenz Blog: McCarthy Guardian Article
Jozef Halbersztadt, patent examiner at the Polish Patent Office
Polish companies own practically no software patents and Poland has a
tradition of refusing to grant such patents. The McCarthy directive
would bring a radical change to Poland. In Recital 16 it is said
clearly, that this proposal is to be considered as a measure of
protecting developped economies against competition from "low-cost
economies". While I do not believe that protection against legitimate
competition in the sofware industry will work to any country's
advantage, it will surely hurt Eastern Europe even more severely than
Western Europe, simply because it imposes a high level of legal costs
which we are less able to afford.
Peter Holmes, economist, participant of an EU-commissioned study, University
of Sussex
The study which we conducted for the European Commission said that
there is no evidence to support an extension of software patentability
and that evidence on the economic effects of software patents in
general was inconclusive. We had to compromise on this formula,
because this was a committee decision, and the majority of committee
members were patent lawyers with firm convictions about the usefulness
of patents. Yet in some ways this was already a progress. If we had to
take the decision again today, we might be able to advance further.
The recent [31]Bessen & Hunt study seems to show conclusively, based
on extensive fact-gathering, that software patents have stifled
software innovation. Today, the burden of proof should be on those who
propose legislation to allow software patents.
see [32]IPI 2000: The Economic Impact of Patentability of Computer
Programs
Stefan Pollmeier, MD of ESR Pollmeier GmbH, Germany
Stefan Pollmeier is managing director of an electronics company with
45 employees near Frankfurt, Germany. 80% of their R&D is in software.
During the last year I [33]learned much about the directive
proposal and I know the amendments that passed JURI today. I don't
think that business method patents such as Amazon One-Click could
be avoided in Europe if the amended directive proposal would pass
in parliament.
Let us take for granted that the amended directive proposal wants
to harmonize the current practice of the European patent office
EPO. Please consider the following statements from IP specialists
in 2001:
<<
Of course, the liberal practice in the U.S. requires to file almost
any business method for patent. These business methods are always
implemented by a computer (I have not seen any other example).
[...]
When studying a business method computer software program it turns
out that in most cases that program includes at least one aspect
(feature) which might qualify under the European standards as
"technical".
>>
This statement [34]originates from the acclaimed German IP law firm
"Wuesthoff & Wuesthoff".
From this it should be clear that a directive harmonizing current
EPO practice would allow patents on most (computer-implemented)
business methods, including Amazon One Click.
Many people had [35]asked EU commission and the supporters of the
amended directive proposal to make clear the outcome using example
patents (Amazon One Click could be one). As far as I know they
received no answers to their questions.
Dr. Jean-Paul Smets-Solanes
Jean-Paul Smets, CEO of [36]Nexedi, a successful Enterprise Ressource
Planning software startup, was trained as an informatician and
economist and and served as a french industrial planning administrator
before he founded Nexedi. Smets wrote an important [37]study on
software patents for a french governmental institution in 2001. Upon
hearing the news of the JURI vote, he restates a concern which he
already expressed at the [38]software patent symposium in Brussels in
May 2003:
Today the JURI voted for not stopping the monopolisation of public
informational infrastructure. If the Plenary does not open their eyes
for what is happening, soon every citizen will pay tax, not to the
state, but to american and japaneese corporations, because they own
the patent rights on digital communications in the information
society.
Europe is today 7 years behind korean and japanese societies, where
citizens pay 12 EUR per month for 24 Mbps ADSL access to the Internet.
This is because EU politicians chose to believe in the dogmas that
everything must be left to private initiatives.
Now Europe seems to be following the same type of dogma again:
privatisation of abstract ideas, erection of enclosures in a way that
simply can't work, as common sense and economic studies tell us.
Dogmas make life easy for legislators. But for the rest of us, the
price to pay can be very high. The patents are where the
infrastructure is. Currently in Japan concerted efforts are under way,
sponsored by the government, to preemptively secure patents on all
kinds of software ideas. Housewives are taking courses in writing
patent applications. JURI is now making sure that these patent will
come to Europe. Thus, even when we catch up and achieve the same level
of communication infastructure as East Asia, we may not even be free
to use it efficiently, because the road is cluttered with the patents
of the first movers.
About FFII - www.ffii.org
-> [39]Foundation for a Free Information Infrastructure
The Foundation for a Free Information Infrastructure (FFII) is
a non-profit association registered in Munich, which is
dedicated to the spread of data processing literacy. FFII
supports the development of public information goods based on
copyright, free competition, open standards. More than 200
members, 180 companies and 12000 individual supporters have
entrusted the FFII to act as their voice in public policy
questions in the area of software property law.
Press Contacts
mail:
info@ffii.org
phone:
Hartmut Pilch +49-89-18979927
References
-> [40]Greens/EFA press release: disastrous vote in JURI
-> [41]Gasoliba statement
Carles Gasoliba i Bohn (CdC, CiU, ELDR), liberal MEP from
Catalonia, warns that the JURI decision leads to broad and
trivial patents on non-inventions and that controllable forces
of nature must be an essential element of any invention in the
sense of patent law.
-> [42]Mayol statement
Miquel Mayol MEP (Greens/EFA, Catalonia) issues a press release
shortly before the vote in which he warns of disastrous
consequences of the imminent JURI decision on SMEs, which form
the bulk of the catalonian software economy.
-> [43]phm 2003/06/17: Abstimmung in JURI jetzt
-> [44]phm 2003/06/17: Abstimmung in JURI: Ergebnis
-> [45]phm 2003/06/17: JURI-Abstimmung und Grüne PE
explains that 1/3 was against and 2/3 may have believed
McCarthy's promise that she wanted "no patents on algorithms
and business methods like in the US", that other commissions
voted against swpat and this is only an intermediate stage,
quotes Rothley and other pro-swpat MEPs who showed frustration
-> [46]Andrew Duff MEP on Swpat
Some semblance of common sense in a digital world that has gone
mad
-> [47]Yahoo: EU Improves Software Patent, But Outlaws Amazon One
Click
Journalist Matthew Newman copy&pastes patent lobby propaganda.
The truth is: JURI is replacing an already unified patent
standard by a set of intransparent rules which turn Amazon's
One-Click idea into a patentable invention and create no unity
but at best put the EPO more firmly in charge.
-> [48]phm 2003/06/18: Patent Propaganda in Yahoo
A public letter to Matthew Newman, author of a Yahoo article
which collects deceptive patent lobby statements into a
misleading message.
-> [49]Slashdot: EU Moves Towards Single European Patent Standard
Many readers fooled by the Newman/Yahoo propaganda article, but
also many enlightening statements.
-> [50]CORDIS: MEPs vote to tighten up rules on patentability of
computerised inventions
Lying seems to have become a common sport in EU politics. This
report seems to come from Arlene McCarthy's staff.
-> [51]ZDNet UK: European software patents inch closer
A fairly objective account of what JURI chose and what JURI
voted against. Also cites some elements from our press release.
-> [52]Heise News-Ticker: Europäische Softwarepatente rücken näher
German IT news magazine with as lively forum discussion as
Slashdot. Article quotes FFII and Cohn-Bendit. Forum is full of
furious condemnations of McCarthy and the JURI politicians in
general.
-> [53]2003/06/17 BXL: The JURI Vote
A short public meeting between software stakeholders and
members of the European Parliament to discuss about the JURI
vote on the Directive Proposal, which is taking place on the
same day. This will also be a kickoff meeting for a campaign to
inform MEPs in the plenary.
-> [54]McCarthy 2003/06/12: Letter to the Guardian
Arlene McCarthy, Member of the European Parliament for UK
labour and rapporteur of the JURI committeee for the software
patent directive proposal, has for the first time directly
answered arguments from critics in a letter to the british
newspaper The Guardian. Yet the basic questions, e.g. what
should be patentable and how McCarthy's proposals achieve this,
remain unanswered. McCarthy reiterates demagogic statements of
whose untruth she is well-informed and even resorts to lies in
the strictest sense of the term, such as saying that she
introduced a provision to allow decompilation. McCarthy
moreover attacks the GNU General Public License in an apparent
effort to shift focus to unrelated subjects and incite
flamewars with the free software community. We analyse
McCarthy's fallacies and the political context of her letter.
_________________________________________________________________
http://swpat.ffii.org/news/03/juri0617/index.en.html
[55]© 2003/06/18 [56]Workgroup
Verweise
1. http://swpat.ffii.org/news/03/juri0617/swnjuri030617.en.txt
2. http://swpat.ffii.org/group/todo/index.en.html
3. http://swpat.ffii.org/news/03/juri0617/swnjuri030617.en.pdf
4. http://swpat.ffii.org/news/03/index.en.html
11. http://swpat.ffii.org/index.en.html
12. http://swpat.ffii.org/news/03/juri0617/juri030617.pdf
13. http://www.digitalforbruger.dk/SWPAT/
14.
http://swpat.ffii.org/papers/eubsa-swpat0202/juri0304/amcc030617/index.en.html
15.
http://swpat.ffii.org/papers/eubsa-swpat0202/juri0304/eldr030617/index.en.html
16. http://swpat.ffii.org/papers/eubsa-swpat0202/juri0304/index.en.html
26. http://www.opera.com/
27.
http://swpat.ffii.org/papers/eubsa-swpat0202/juri0304/amcc030617/index.en.html
28. http://swpat.ffii.org/players/cducsu/index.de.html
29.
http://swpat.ffii.org/papers/eubsa-swpat0202/amccarthy030612/index.en.html
30. http://k.lenz.name/LB/archives/000415.html
31. http://swpat.ffii.org/papers/bessenhunt03/index.en.html
32. http://swpat.ffii.org/papers/indprop-ipi00/index.en.html
33. http://www.esr-pollmeier.de/swpat/
34. http://swpat.ffii.org/papers/wuesthoff-bm01/index.en.html
35. http://swpat.ffii.org/analysis/testsuite/index.en.html
36. http://www.nexedi.com/
37. http://www.pro-innovation.org/rapport_brevet/brevets_plan-en.pdf
38. http://swpat.ffii.org/events/2003/europarl/05/index.en.html
39. http://www.ffii.org/index.en.html
40. http://www.greens-efa.org/en/press/detail.php?id=1445&lg=en
41.
http://wwwdb.europarl.eu.int/ep5/owa/whos_mep.data?ipid=0&ilg=ES&iucd=1344&ipolgrp=.&ictry=.&itempl=.&ireturn=&imode=
42. http://esquerra.org/article.php?id_article=1788&mes_info=1
43. http://lists.ffii.org/archive/mails/neues/2003/Jun/0003.html
44. http://lists.ffii.org/archive/mails/neues/2003/Jun/0004.html
45. http://lists.ffii.org/archive/mails/swpat/2003/Jun/0060.html
46. http://www.timj.co.uk/digiculture/patents/2003-06-03_Duff.php
47. http://biz.yahoo.com/djus/030617/1229001026_2.html
48. http://aful.org/wws/arc/patents/2003-06/msg00093.html
49.
http://developers.slashdot.org/comments.pl?sid=67951&threshold=1&commentsort=0&tid=155&tid=99&mode=thread&pid=6227961#6231417
50.
http://dbs.cordis.lu/cgi-bin/srchidadb?CALLER=NHP_EN_NEWS&ACTION=D&SESSION=&RCN=EN_RCN_ID:20436
51.
http://news.zdnet.co.uk/story/0,,t269-s2136233,00.html?rtag=zdnetukhompage
52. http://www.heise.de/newsticker/data/pmz-18.06.03-000/
53. http://swpat.ffii.org/events/2003/europarl/06/17/index.en.html
54.
http://swpat.ffii.org/papers/eubsa-swpat0202/amccarthy030612/index.en.html
55. http://www.gnu.org/licenses/fdl.html
56. http://swpat.ffii.org/group/index.en.html
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