Re: [Free-sklyarov-uk] Reply from Arlene McCarthy MEP

[Rui Miguel Seabra <rms@1407.org>]

Note that what I write is aimed as remarks to points and not really
suitable for an answer:

On Wed, 2003-07-16 at 23:27, phil hunt wrote:
> ------------- begin --------------
> Response to your correspondence regarding the draft EU directive on 
> patentability of computer-implemented inventions.
> Date: Wed, 16 Jul 2003 16:10:06 +0100 (BST)
> From: Arlene McCarthy <arlenemccarthymep@yahoo.co.uk>
> To: philh@cabalamat.org
> 
> 
> Dear Philip Hunt,
> 
> 
> 
> Thank you for your correspondence concerning the draft directive on the 
> patentability of computer-implemented inventions.
> 
> 
> 
> The European Parliament's Legal Affairs Committee has voted on my report on 
> the directive and there will be continuing debate and further democratic 
> scrutiny before the directive becomes law.

Yes. The one debate before EP scrutinity that will set forward the
mine-field deployment.

> 
> 
> 
> At this early stage of legislative process,

Early? I'd say we're pratically at the _end_ of the legislative process.
After voting *for* human-thought patents member countries have a short
time to legislate likewise.

>  it is nonetheless important to 
> establish the facts about what the draft EU directive and what I, as the 
> Parliament's rapporteur, are aiming to achieve in the amendments tabled to 
> the Commission proposal.
> 
> 
> 
> It has been suggested that the Parliament's report will for the first time 
> allow the patentability of computer-implemented inventions. This is simply 
> not true. The patenting of computer-implemented inventions is not a new 
> phenomenon. Patents involving the use of software have been applied for and 
> granted since the earliest days of the European Patent Office (EPO).

We're talking about the EP or the EPO? Is she trying to deliberatly
confuse a casual and uninformed reader?

>  Out of 
> over 110,000 applications received at the EPO in 2001, 16,000 will have 
> dealt 
> with inventions in computer-implemented technologies. Ind
> ed, even without an EU directive, these patents will continue to be filed, 
> not only to the EPO but also to national patent offices.

But without the directive proposal, none of them has real legal power.
They're less useful than toilet paper, which at least is soft enough.

> 
> 
> As you will be aware, in the US and increasingly in Japan, patents have 
> been 
> granted for what is essentially pure software. Some EPO and national court 
> rulings indicate that Europe may be drifting towards extending the scope of 
> patentability to inventions which would traditionally have not been 
> patentable, as well as pure business methods.

The EPO's practice indicates that Europe is not 'maybe drifting' but has
already drifted. The proposed directive will only make that not a
drifting but the general rule.

>  It is clear that Europe needs a 
> uniform legal approach which draws a line between what can and cannot be 
> patented, and prevents the drift towards the patentability of 
> oftware per se.

There is a clear line in the European Patent Convention: software is not
patentable.

> 
> 
> My intention is clear in the amendments tabled and in a new Article 4 in 
> the 
> text, to preclude; the patentability of software as such; the patentability 
> of business methods; algorithms; and mathematical methods. Article 4 
> clearly 
> states that in order to be patentable, a computer-implemented invention 
> must 
> be susceptible to industrial applications, be new, and involve an inventive 
> step. Moreover I have added a requirement for a technical contribution in 
> order to ensure that the mere use of a computer does
> not lead to a patent being granted.

All software can be applyed to industrial applications.
Nothing in software is so new that it is radically different.
Almost everything rational involves an inventive step. The invention may
be utterly irrelevant or obvious, though.
What is a technical contribution according to this directive? If you add
a restriction that restriction must not be vague or undefined. It should
manipulate forces of nature.

> 
> 
> Furthermore, the amended directive contains new provisions on decompilation 
> that will assist software developers. While it is not possible to comment 
> on 
> whether any patent application would be excluded from the directive, the 
> directive, as amended, would not permit the patentability of Amazon's 
> 'one-click' method.

Exactly how? This question has yet to be answered. Arlene McCarthy
claims they are not specialists, so how can they say this?
If they know for sure, then please do explain, because we who know
something of the area are convinced that it would pass (just like so
many others, for isntance, the test suite at ffii.org).

As far as I see it:
   "Amazon One-Click Shopping must be a patentable invention
   in Europe, because it can be implemented in a mobile phone just as
   well as on a general-purpose computer"

>  As far as software itself is concerned, it will not be 
> possible to patent a software product. Software itself will continue to be 
> able to be protected by copyright.

Software itself is not patentable
(unless it's contained and executed in a machine, with physical human
interface segments).

> 
> 
> With an EU directive, legislators will have scrutiny over the EPO and 
> national court's decisions.

So when the patent 'experts' can't do (their job), the non 'experts' do?

>  With, in addition, the possibility of having a 
> definitive ruling from the European Court in Luxembourg, thus ensuring a 
> restrictive interpretation of the EU directive and a greater degree of 
> legal 
> certainty in the field of patentability of computer-implemented inventions.

The interpretation is as restrictive as the directive:

        No Harmonisation
        No Clarification
        Less Freedom
        Less Property
        Less Innovation
        Less Competition


> 
> 
> Some concerns have been raised that the directive may have an adverse 
> effect 
> on the development of open source software and small software developers. I 
> support the development of open source software and welcome the fact that 
> the 
> major open-source companies are recording a 50% growth in world-wide 
> shipment 
> of its products. 

Free Software has already been hurt. ffii.org has some examples.

> 
> 
> In the amended proposal, I have imposed a requirement on the Commission to 
> monitor the impact of the directive, in particular its effect on small and 
> medium sized enterprises, and to look at any potential difficulties in 
> respect of the relationship between patent protection of 
> computer-implemented 
> inventions and copyright protection.

SME's do not want software patents because they _already_know_ their
businesses will suffer.

> 
> 
> Many small companies have given their support to this directive, which will 
> give them more legal certainty as it offers the possibility of protection 
> for 
> their R&D investment, and so assists in spin-off creation and technology 
> transfer and generating new funds for new investments. 

Which SME's? But also just as important: which Large Enterprises?

> 
> 
> Indeed recently, a small ten-person company in an economic black-spot in 
> the 
> UK granted a licence to a US multinational for its voice recognition 
> software 
> patents. Without European patent protection in this field, the small 
> company 
> could have found itself in the perverse situation whereby its R&D efforts 
> and 
> investment would simply have been taken by a large multinational company, 
> who, with its team of patent lawyers, would have filed a patent on this 
> invention. The EU company could have been faced subse
> uently with patent infringement proceedings.

This is complete double-speak. Wiht software patents the small companies
are at the mercy of large companies. Large companies can easily empty
the pockets of an SME into it's own with the leveraging thousands of
software patents it has.

If this one small company did get lucky, it's the exception that proves
the rule.

> 
> 
> Some lobbyists would like us to believe that having no patents is an option 
> - 
> it is not. No patents would put EU software developers at a severe 
> disadvantage in the global market place, and would hand over the monopoly 
> on 
> patents to multinational companies.

Some lobbyists want no Software patents. Interesting as suddenly it's
not anymore about software patents but patents in general that's on
McCarthy's tongue. This is a clear forward movement trying to say we're
agains all patents.

Also, it shows how flawed her argument is. If there are no software
patents, how could a company have a monopoly in software patents? It's
utterly ridiculous reasoning. This wouldn't pass the turing test.

> 
> 
> The work I have done is an honest attempt to approach this matter 
> objectively, and to produce balanced legislation, taking into account the 
> needs and interests of all sectors of the software development industry and 
> small businesses in Europe. No doubt there will be more debate and 
> refinements to the legislation before a final text is agreed under the EU 
> legislation process.

The needs of Europe's SMEs (by far the majority) are not taken in
account with this directive, but only those needs that come from large
multinational companies. No doubpt there will be more debate: more or
less exactly one if McCarthy get's her way in September.

> 
> 
> At a time when many of our traditional industries are migrating to Asia and 
> when Europe needs increasingly to rely on its inventiveness to reap 
> rewards, 
> it is important to have the option of the revenue secured by patents and 
> the 
> licensing out of computer-implemented technologies.

So... having software patents here helps in exactly what? Software here
gets harder and more expensive to do. The Asian market already knows
this golden rule: it works, its widely available and it's cheaper => it
sells more. Europe stands to loose by increasing software development
costs from marginally zero to forbidding values.

> 
> 
> Software development is a major European industry. In 1998 alone the value 
> of 
> the EU software market was 39 billion. Most of this will be protected by 
> copyright, but genuine computer-implemented inventions must have the 
> possibility, for the future of competitiveness of our industry, to have 
> patent protection.

So, the market is too successful so now we need to mine it? Software
patents nullify copyright. Thus, a multi-billion market gets mined.

*sigh*
-- 
+ No matter how much you do, you never do enough -- unknown
+ Whatever you do will be insignificant,
| but it is very important that you do it -- Gandhi
+ So let's do it...?

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