Re: [Patents] Software Patents in Europe: Short Overview

["Jacek Gancarson Eurofresh" <jacek.gancarson@eurofresh.se>]

I find this text very explanatory and balanced.

It clearly specifies the historical faults by EPO and all further effort to
legalise all these mistakes. It smells another Watergate!



This text should be widely distribute and published in major European press
if they are still alive, Otherwise Europeasn will loose billions for
fictive, idle processes! May be we can contact European press with this
text!


Best regards
Jacek Gancarson
www.eu3d.com

----- Original Message -----
From: "Seth Johnson" <seth.johnson@RealMeasures.dyndns.org>
To: <C-FIT_Community@RealMeasures.dyndns.org>;
<C-FIT_Release_Community@RealMeasures.dyndns.org>;
<fairuse-talk@nyfairuse.org>; <DMCA_Discuss@lists.microshaft.org>;
<DMCA-Activists@gnu.org>; <patents@aful.org>; <fsl-discuss@lists.alt.org>
Cc: <pho@onehouse.com>
Sent: Friday, May 28, 2004 9:38 PM
Subject: [Patents] Software Patents in Europe: Short Overview


>
> > http://kwiki.ffii.org/?ShortIntroEn
>
>
> Software Patents in Europe: A Short Overview
>
>
> DEUTSCH: http://kwiki.ffii.org/?ShortIntroDe
> GREEK: http://epatents.hellug.gr/wiki/index.php/Short%20introduction
> FRANÇAIS:  http://kwiki.ffii.org/?ShortIntroFr
>
>
> A patent is a right to monopolize an invention. A would-be inventor
> specifies a scope of activities from which he wants to exclude others (the
> claims), and submits it to the Patent Office, which evaluates whether
these
> claims depict an invention within the sense of the law and whether the
> invention is correctly disclosed and industrially applicable (formal
> examination). Some patent offices will moreover examine whether the
> invention is new and non-obvious (substantive examination). If the
> application passes the examination hurdles, the Patent Office grants the
> applicant exclusive rights to produce and market the invention for a
period
> of 20 years.
>
> Programming is similar to writing symphonies. When a programmer writes
> software, he weaves together thousands of ideas (algorithms or calculation
> rules) into a copyrighted work. Usually some of the ideas in the
> programmer's work will be new and non-obvious according to the (inherently
> low [1]) standards of the patent system. When all these new ideas are
> patented, it becomes impossible to write software [2] without infringing
on
> patents. The copyright claims of software authors are thereby
expropriated;
> they live under permanent threat of being blackmailed by holders of large
> patent portfolios [3]. As a result, less software is written and fewer new
> ideas appear.
>
> The core patent law in Europe is the European Patent Convention of 1973
[4].
> In Article 52, the Convention states [5] that discoveries, scientific
> theories, mathematical methods, rules, methods of thought, business
methods,
> and computer programs are not inventions in the sense of patent law. There
> is a reason for that: in the legal tradition patents have been for
physical
> devices and particular implementations, whereas patents on software cover
> abstract ideas. When patents are applied to software, the result is such
> that instead of patenting a specific mousetrap, you patent any "means of
> trapping mammals" (or, for an actual example, any "means of trapping data
in
> an emulated environment" [6]).
>
> In 1986 the European Patent Office (EPO) started granting patents on
> computer programs in violation of the EPC [7], allowing claims on software
> distinguished only by the use of the following phrasing:
>
> "a system and method for using a computer, characterised by ..." (process
> claims)
>
>
> Unchecked in this practice, in 1998 they began granting claims that
> literally contradicted the law, allowing patents on software for claims
that
> used the following phrasing:
>
> "a computer program, characterised by ..." (program claims).
>
>
> The number of patents on software that the EPO has granted in this manner
is
> estimated at more than 30,000 [8], and this practice has been increasing
at
> a rate of 3,000 per year.
>
> Most of these patents are broad and trivial and not significantly
different
> from corresponding types of patents that the US and Japan have been
> allowing.
>
> Given the damaging effects of this practice, not to mention its
illegality,
> one might expect the EPO would be subject to pressure to bring its
practice
> in accord with the letter and spirit of the law. Instead, in 1997 the
patent
> establishment surrounding the European Patent Office began an attempt to
> rewrite the law to make their practice of granting patents on software
> legal. This process has been presented as an effort to "clarify" the
> distinction between valid and invalid claims related to software, and as
an
> effort to supposedly assure that claims on "pure software" would not be
> possible -- *but it is in fact actually an effort to enable software as
such
> to be legally patented.*
>
> In 2000 this group of patent professionals, consisting of patent lawyers
> from governments (on the Administrative Council) and large corporations
(on
> the Standing Advisory Committee) and their colleagues from the European
> Commission (the Industrial Property Unit in the Directorate of the
Internal
> Market, at the time under commissioner Mario Monti)) *attempted to delete
> all the exclusions listed under Art 52 of the European Patent Convention.*
> Due to public resistance which they apparently did not anticipate, this
> effort failed.
>
> In 2002, the European Commission's Directorate for the Internal Market
> (under Monti's successor Frits Bolkestein) submitted proposal 2002/0047
[9],
> for a Directive "on the patentability of computer-implemented inventions."
> The Directive was claimed to serve the purposes of harmonizing Member
State
> laws and clarifying some details with the aim of preventing excesses of
the
> EPO. However, a direct reading of the misleading phrasing and terminology
in
> the Directive, reveals that the proposal is actually designed to *codify
> unlimited patentability as practiced by the EPO.*
>
> Small and medium-sized enterprises and activists from all across Europe,
> coordinated by the Foundation for a Free Information Infrastructure (FFII)
> (http://www.ffii.org/), a non-profit foundation situated in Germany, put
out
> press releases, conducted petition drives, undertook intensive lobbying,
> held demonstrations, and managed to impress upon the Members of the
European
> Parliament (MEPs) [10] the importance of the decision despite its
technical
> nature and the deceptive and misleading manner in which it was being
> presented.
>
> On September 24, 2003, the Parliament voted as a body [11] to incorporate
a
> set of amendments into the Directive [12] that served the purpose it had
> ostensibly been intended to serve, clarifying and reaffirming the
> non-patentability of programming and business logic and upholding freedom
of
> publication and interoperation.
>
> According to the European Union procedures, the amended proposal is next
> examined by the Council of Ministers. Within the Council, the "Working
Party
> on Intellectual Property (Patents)" was put in charge. This group consists
> of exactly the same members as the Administrative Council of the European
> Patent Office: patent administrators from the national governments.
>
> After a few months of secret negotiations, the "Working Party" produced a
> "compromise" document [13] that *eliminated the Parliament's amendments
and
> explicitly made computer programs, data structures and process
descriptions
> patentable*. Access to versions of this document was denied until the very
> last minute "due to the sensitive nature of the negotiations and the
absence
> of an overriding public interest."
>
> On 18 May 2004, the Council made a few cosmetic amendments to the document
> and approved it by a slim majority despite the apparent intention of a
> number of countries to follow Germany's lead in promising to vote against
> it. In that session, Germany claimed to be satisfied by a meaningless
> amendment; the Netherlands supported the document while admitting that it
> might be problematic; and Commissioner Frits Bolkestein inserted an
> amendment in Article 4 which, he claimed, clearly made software
> unpatentable, when in fact his phrasing merely reasserted deceptive
> terminology, while he failed to mention that elsewhere in the proposal
> *Article 5 unambiguously stated the very opposite*. (In the press
conference
> that followed the Council vote, he failed to offer any examples of
software
> that would not be patentable as a result of the proposal.) The Council
vote
> was also notable for the way in which the Irish Presidency pressed Denmark
> for her votes [15], by which the slim majority was secured.
>
> After trivial corrections and translations, the Council is expected to
> officially endorse their proposal in July 2004. It will then return to the
> European Parliament for another reading. At this stage, the Parliament may
> either reject it outright, accept it as it is, or insist on the set of
> amendments which the Council has eliminated.
>
> [1] http://swpat.ffii.org/analysis/trivial/
> [2] http://webshop.ffii.org/
> [3] http://www.forbes.com/asap/2002/0624/044.html
> [4] http://www.european-patent-office.org/legal/epc/
> [5] http://swpat.ffii.org/analysis/epc52/
> [6] http://swpat.ffii.org/patents/samples/ep769170/index.en.html
> [7] http://swpat.ffii.org/papers/epo-t840208/index.en.html
> [8] http://swpat.ffii.org/patents/stats/index.en.html
> [9] http://swpat.ffii.org/papers/eubsa-swpat0202/
> [10] http://kwiki.ffii.org/index.cgi?MEPs
> [11] http://swpat.ffii.org/news/03/plen0924/index.en.html
> [12] http://swpat.ffii.org/papers/europarl0309/index.en.html
> [13] http://swpat.ffii.org/news/04/cons0402/index.en.html
> [14] http://kwiki.ffii.org/?Cons040518En
> [15] http://kwiki.ffii.org/?ConsVideo0405En
>
> --
>
> DRM is Theft!  We are the Stakeholders!
>
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> http://www.nyfairuse.org
>
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