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Some European states' POs may be better than the USPTO but the EPO certainly isn't. The EPO grants software and business method patents and, like the USPTO, it has no qualms about enabling its customers to engage in speculative extortion: http://webshop.ffii.org/ and outright theft: http://www.ffii.org.uk/archives/28 (a theft of ideas outlined in the X Consortium's ICCCM standard).

But, if the patent involved a software program that did some technical job in a novel way, so long as the novelty did not lie only or primarily in it being a software program as such, then it could be patented. As I understand it, this is the stance of the EPO and is in accordance with the European Patent Convention.

You understand correctly, however stance and practice are different so your post could be misleading ;-)

The following email contains snippets from earlier EPO rulings involving art52. These rulings are clear and consistant.

http://lists.ffii.org/pipermail/news/2003-April/00 0138.html

Now for the EPO's current practice:

http://www.ffii.org.uk/archives/28

The EPO have become a joke!

All the arguments for hardware patents can be made for software patents. All the arguments against hardware patents can be made against software patents.
To object to one but not the other is inconsistent

Or maybe the National Research Council, claiming that the software industry is quite different from traditional industry sectors for various reasons.

Or maybe the Max Planck and Fraunhofer Institutes? (the latter even own some patents on mp3 compression)

Yes, I know, this is /. & we have a million examples of patents stifling innovation... but no legitimate analysis.

You can start by having a look at these ones, for example:

• Deutsche Bank Research:

  "Stronger IP protection is not always better. Chances are that patents on software, common practice in the US and on the brink of being legalised in Europe, in fact stifle innovation. Europe could still alter course"

• PriceWaterhouseCoopers:

  "The mild regime of IP protection in the past has led to a very innovative and competitive software industry with low entry barriers. A software patent, which serves to protect inventions of a non-technical nature, could kill the high innovation rate."

• Federal Trade Commission:

  "More patents in more industries and with greater breadth are not always the best ways to maximize consumer welfare."

  "Many panelists and participants expressed the view that software and Internet patents are impeding innovation. They stated that such patents are impairing follow-on incentives, increasing entry barriers, creating uncertainty that harms incentives to invest in innovation, and producing patent thickets. Panelists discussed how defensive patenting increases the complexity of patent thickets and forces companies to divert resources from R&D into obtaining patents. Commentators noted that patent thickets make it more difficult to commercialize new products and raise uncertainty and investment risks. Some panelists also noted that hold-up has become a problem that can result in higher prices being passed along to consumers."

The FFII has a list of further studies that you can have a look at here.

Now, perhaps I can turn the questions around. Can anybody provide a link to a single reputable study that concludes that software patents are necessary or good for society?

If so, please do.

But to the best of my knowledge there isn't any such study, so please don't feel embarassed if you can't. :-)

It's called the FFII. In future there will be a European branch of the EFF.

As far as I know, there do is a local UK group which is part of the bigger-picture FFII: http://www.ffii.org.uk/

IANALOAK (of any kind), but the scenario you described is an abuse of the patent/judicial system, not the scenario it is designed to protect.

(Don't throw out the baby with the bathwater.)

Nevertheless, no one argues for "not throwing out the baby with the bathwater" and to introduce such a system, while at the same encouraging people to fight for preventing abuse of such a system. Even though a particular system could have some positive effects in an ideal world, that does not mean that abandoning it in the real (and not ideal) world is a bad decision.

In fact, patents (if done right) should be a benefit to any developer. They should stimulate people to work hard at developing new ideas, so when they share them, there can be some personal reward (or at least a payback to cover the investment of time and effort).

In summation, the problem isn't with the patent concept itself, but with its implementation-- benefitting the powerful to the expense of the individual.

It's not just implementation, there are lots of indications that the principle of the patent system is simply unsuited for a field like software. More here.

However, patents on ideas cannot be specific. In fact they will always be abused for precisely this reason by the paper pushing business that is any Patent Office.

Given your example in the thread below, do you imagine if another written medium, like literature for instance, would have progressed with a patent like "A method for building and resoloving the Protagonist's Catharsis." Or in music, the (algorithmic) 'Rondo' phrasal form (musical phrases A - B - A - C - A), prevalent in rock music since the 60's? These examples are analogous with the encouraged trend in what is considered patentable - where software is concerned.

Here are some examples of the current state of software patents today, the kinds of things people want to patent are in fact as loose as possible - eg a net made so large as to increase the likelihood of patent breach. In other words, the bulk of swpats are precisely not about protecting innovation so much as encouraging the possibility of legal action. Hence we increasingly hear about software development houses becoming legal offices; it is simply better and bigger business.

http://webshop.ffii.org/

Secondly a software patent is often used as a pre-emptive strike against a superceding product. Much of the software patents granted today for so-called inventions are registered precisely to protect the patent holders already inferior product - extending it's market cycle while ensuring the 'invention' never makes it to market. How does that encourage innovation, boosting the culture of software as a whole?



And from the perspective of the small developer (as you claim to be) , here is a testimony that makes the real danger loud and clear. SWPatents discourage innovation , but also creation itself:

Agarwal Associates Ltd

As the owner/manager of a small company employing 10 people I can not afford to do a full patent search every time I have an idea for a software product .

As a small company our strength is in being fast and flexible. We can not be either if every time we need to put together a bespoke solution for a clien t we would need to spend months putting together systems for our clients tha t avoid any software patent issues.

As a small company our strength is in being fast and flexible. We can not be either if every time we need to put together a bespoke solution for a clien t we would need to spend months putting together systems for our clients tha t avoid any software patent issues.

This has a direct impact on our Clients who are also SMEs. They would not be able to afford solutions suitable for them and would have to use a standard solution from the big players whether it was suitable or not.

UKPO claims that the new directive does not change anything but only clarifi es the current law. If that is the case, why oppose the clause inserted by t he European Parliament to explicitly deny patents for software? Make it expl icit and clear for everyone!

Added: 2004-12-07 http://protectinnovation.ffii.org.uk/read_testimon y

The Patent Office has today announced a series of workshops to examine the possibility of a more concrete definition of "technical contribution" in the Software Patent directive (NB: Registration deadline 18 February) More see FFII UK.

But if someone does come up with something truly unique that is expressed in software, how can this be legally protected so someone else doesn't steal your work after one or one-half year?

Study after study shows that software innovation does not happen because people want to get a monopoly, but because they have since otherwise the competition will catch up to them. The industry needs cheap, fast and narrow protections (similar to copyright), because patents are inherently so broad they are clogging up the system with thickets. The big companies aren't all cross licensing their patents just for fun.

Perhaps there should be no software patents at all, just some sort of legal copyright protection for 5 years or so. But how is that uniqueness defined anyway? At what point does a subsection of code become unique enough to be protected?

Independent writing of a similar program (which simply does the same, but otherwise is in no way based on the original program) is not covered by copyright. That's a feature of copyright, not a bug. As such, copyright does give you a short time span on which you are alone on the market with that feature.

It definitely won't be 5 years in general, but even 5 years is an eternity in terms of software development.

You can compare the voting record of your MEPs to the contents of that letter here: http://www.ffii.org.uk/votes/swpat/UK/s.html.

Please write back to them, and ask them to explain any discrepancy!

Patricia Hewitt is a techno-brainless minister (not MEP).

I believe that the majority of Labour MEPs are against software patents.

Look here for a point-by-point analysis of a letter written by Patricia Hewitt, Labour MP.

Creators are primarily motivated by money.

Additionally, one person's protection is another person's limitation. Patents allow one person to make money, but inhibit a lot of others (since they're per definition monopolies). As such, they discourage follow-up innovation (after all, to be able to use your work, you will have to pay to the owner of every other patented technique you use).

In the world of software, where almost all inovation is sequential as opposed to revolutionary, this has large negative consequences.

Newsflash: ALL patents are algorithms. Stop acting like this unique to computers. Chemical process patents, for example, are structurally and functionally indistinguishable and very obviously map into the same space as "software algorithms" and yet those are not considered controversial.

his is not an argument against anything. Everything machine is reducible to software, and every software is reducible to machine.

And that may exactly be the FTC report concluded that patents in the computer hardware industry and semi-conductors are generally considered to be not very efficient either.

Further, even though the intellectual achievement is quite similar (the routine and layout of the chips may require some extra time), in practice you often need either a chip fabrication line, or have to buy stock of those chips with someone else. In case of software development, almost the only investment that really counts is human capital. You don't have to setup a new assembly line for each program.

Quibbling over meaningless distinctions between identical classes of things is completely missing the point

So why is it that it's beneficial for innovation and the economy to issue a patent on the apple sorter, but not the database sorter?

Representatives from both the computer hardware and software industries observed that firms in their industries are obtaining patents for defensive purposes at rapidly increasing rates. They explained that the increased likelihood of firms holding overlapping intellectual property rights creates a "patent thicket" that they must clear away to commercialize new technology. They discussed how patent thickets divert funds away from R&D, make it difficult to commercialize new products, and raise uncertainty and investment risks.

Correct. But that is today. Software development in twenty years will likely look very different.

Will it? It doesn't look that different today than it did 20 years ago. There are some new concepts (OOP, AOP, etc), we have RAD's, but in the end it's still programmers and designers thinking of new algorithms, debugging stuff, and integrating everything into a stable and usable whole.

Consider: None of these arguments is, well, novel - they have thirty years of dust on them. They were all made regarding biotech, too.

I doubt it. Did anyone ever claim the biotech industry is a "cottage industry"? (see the last paragraph) That you barely need any investments to start a new biotech company? That everything underlying biotech innovations in pure maths? That biotech patents pave the way for patents on business methods? That biotech patents could be used to prevent publications of new biotech techniques and not just their use? (program claims) That biotech is pervasive throughout all economic sectors going from grocery shops to space stations, and as such is an "enabling technology" of which hindrances have very broad reaches?

Fortunately, those arguments were declined. Obviously, the predicted cataclysm has not materialized. Today, our biotech industry is basically causing a golden age of medicine - we're creating far more disease cures, far faster, than ever before in history.

To be fair, I've never followed the biotech patent situation. So I just searched for "biotech patents" on Google. The fourth link contains several links which seem to show the controversy is still far from settled. So does the sixth and the eighth. There are of course other views as well (such as the tenth link), but claiming everything is happy happy joy joy with no downsides seems just a tad misleading.

There's also a bit about it in the recent FTC report on patents and innovation. They note that the fact that biotech includes quite a bit of consequential innovation (as opposed to traditional pharmaceuticals) causes some problems. You are presumably aware of the fact that software development is almost nothing but consequential innovation (and lots of reuse as well). The solution proposed by the panel members regarding biotech is what is currently already done in the software world: extensive cross licensing. Of course, you need a lot of patents to be able to join that game.

The industry will become more selective about filing software patents. It must, since absurdities like patents on hash tables will never be useful to anyone. Even large companies cannot afford to throw away vast sums of money on patent portfolios that are not enforceable.

Of course they are useful for those companies! They are strategic assets, used as trading cards or litigation tokens. Enforceability is generally not even a concern, as many small companies can simply not afford the litigation costs (if you have the choice between a $50,000 license or a $2,000,000 lawsuit, what do you pick?)

By approximately 2020, we will have an incredibly well-documented record of the state of software development - both in the form of 50 years of programming journals, and in the form of all previously-filed software patent applications.

And there will be tons more of programming legacy which is not documented in this way at all, but just available as source code (which is also a publication, given that source code

If TRIP says all patents should be treated in the same way - well lets do so - just say that the term of _any_ patent is dependent on the time taken to develop/implement the idea (this would require you to submit some evidence with the application)... then apply a fixed multiplyer. Why should an idea developed in an afternoon get the same protection as one that took 5 years of development and trials?

If you want something different, you need a different regime. It does not make sense to first apply some system from the 15th century to all sorts of new stuff it was never designed for, and then to bolt on all kinds of extra rules because -surprise- it simply doesn't work as intended when used to monopolise that new stuff. You should instead look at new paradigms, if you think copyright is not sufficient for the protection investments of computer programs.

As to your second point, you are saying nothing can be changed!

Well thats just not true, plenty of laws beneficial to some (and not to others) have been repealed or superceded (for example the community-charge in the UK). I think there is a much stronger argument for reduction than abolition, so instantly you will get less opposition.

Anyway, since you appear to be from Europe, here we're in a better situation, since here at least software patents aren't legalised yet.

How can anyone effectively argue against a patent term dependant on the effort put into developent of an idea - the only effective argument I can see would be to question the ability of the patent office to determine the novelty/difficaulty of the patent - that argument also criticises the current system too.

This law they are trying to pass will allow companies to patent the software (intellectual property) that they have written? Just like any other company that does R&D (the most costly aspect of producing a product) what is the problem with it being patented?

Europe has a lot more socialists who aren't fans of Big Business

My point is that the rationale used by the author of the parent post in support of the proposition that IP should be "rejected" as property could just as easilly be applied to other forms of property.

And my point was that he wasn't arguing for rejecting IP as a whole, just that software patents create a climate where someone who could normally set up a business on his own (with the only required investment being a computer), now potentially needs an enormous amount of money to either defend himself from software patents (at least $US1.5-2 million per case), or to obtain a portfolio of defensive patents (not free either, and not a guarantee for not being sued).

Something that impedes the free market like that, needs quite good hard data in favour of it for it to be defendable from a macro-economical point of view imho.

our rationale could also be applied to other types of IP, not just software, which come about in rapidly developing fields. The same "sky will fall" arguments were made in the past (some over 100 years ago) and they proved to be dead wrong or wildly exaggerated.

I'm not saying the sky will fall or that software development will come to a halt. Microsoft, IBM and friends will happily go on. It's just that you create a climate where the big players can more or less control who can join the club and who can't, buying out or suing to bankruptcy the ones that don't play according to their rules. A bit like in the telecom sector. Where are all the small time businesses there that don't have to base their business on patenting stuff to license it to the big players?

Also, I'm not claiming patents only have a mainly negative effect on software, it wouldn't surprise me if the case is similar in certain other fields. However, I have not studied them there, so I can't make any statements about that.

Software patents have only been arround since 1998 (date of the State Street decision) so I don't really give much credence to your conclusion that they "do not result in more prosperity or innovation." There just hasn't been enough time to develop evidence in support of such a proposition.

Software patents have been around since quite a bit earlier, even in Europe (the base patent on mp3 compression dates from 1985 or 1986). As far as enforcement in courts is concerned, the slippery slope in the US started already with Diamond vs. Diehr in 1981. And it's not my conclusion, it's the conclusion of those studies (see below for a few).

I could respond by saying that the US leads the world, by far, in the software industry and is the only country that allows software patents. But that would be an oversimplification of the complex issues involved.

Absolutely, since the US dominance started well before there was any talk of software patents. However, it's not the only one that allows them, at least Japan has them as well.

For every one of the "studies" you refer to, I can probably point to another "study" that says the opposite.

Here are some of "my" "studies". I'd love to see yours.

• Study by the Federal Trade Commission from October 2003 (extracts with the software patent related stuff from that report). Conclusions: many indications that software patents hamper innovation because of, among others, patent thickets.
• Empirical study by Bessen&Hunt on the effects of software patents in the US. Conclusion: software patents have resulted in a transfer of R&D money to patent departments and has not resulted in increased R&D. Because of the incremental nature of software development, patents hinder instead of encourage innovation.

• Study by the Federal Trade Commission from October 2003 (extracts with the software patent related stuff from that report). Conclusions: many indications that software patents hamper innovation because of, among others, patent thickets.
• Empirical study by Bessen&Hunt on the effects of software patents in the US. Conclusion: software patents have resulted in a transfer of R&D money to patent departments and has not resulted in increased R&D. Because of the incremental nature of software development, patents hinder instead of encourage innovation.
• Study ordered by the European Commission in preparation of the European software patents directive. It did not suit their goals however, so they avoid referring to it. Quote: "Unless this fundamental lack of knowledge is addressed in a more structured manner, any proposal to optimise the patent system in respect of software-related inventions is based on nothing more than wild guesses or wishful thinking."

First you accuse me of mischaracterizing the FFII.

That can happen with a comment title like the one above...

If you read carefully (I believe the first parenthesis in my response) I clearly wrote that this was the view of the one cambridge ffii presenter.

Who was that? James Heald? I'd be extremely surprised if he'd say something like that (though not impossible I guess, we all make mistakes).

Next, you attempt to equate a sound bite's use of the word "trivial" with "nonobvious", which sounds to me like a bit spin-doctoring by you.

How else is the patent system supposed to stop trivial patents, other then through careful application of the novelty and non-obvious conditions? Without software patents, there's still the "technical character" test in Europe, but that one has been completely eroded by the EPO so it doesn't mean squat anymore... Virtually everything has become "technology" in their eyes. See the page I referred to in my previous post.

But, even if you were right, the fact is that airplanes crash occasionally too, and yet it's still better than walking.

I argue that patent law is so unfit for advances in abstract reasoning, logic and mathematics that you can't but end up with tons of trivial and/or very broad patents if you allow software patents. The end result is that the resulting monopolies hamper innovation much more than they encourage it.

Some studies to back up my claims:

• Study by the Federal Trade Commission from October 2003 (extracts with the software patent related stuff from that report). Conclusions: many indications that software patents hamper innovation because of, among others, patent thickets.
• Empirical study by Bessen&Hunt on the effects of software patents in the US. Conclusion: software patents have resulted in a transfer of R&D money to patent departments and has not resulted in increased R&D. Because of the incremental nature of software development, patents hinder instead of encourage innovation.
• Study ordered by the European Commission in preparation of the European software patents directive. It did not suit their goals however, so they avoid referring to it. Quote: "Unless this fundamental lack of knowledge is addressed in a more structured manner, any proposal to optimise the patent system in respect of software-related inventions is based on nothing more than wild guesses or wishful thinking."

Many more are linked on the page I gave you earlier.

Your comment about no software patents being the default argument position is dubious at best as the counter argument (which in fact you allude to using the term 'intertia') could be made quite easily - patents have worked quite well for many years.

No software patents is the default position in Europe. The European Patent Convention excludes them, and so did the European Patent Office until it started with its creative interpretation claiming that "a computer program executed by a computer" is not the same as "a computer program as such". When you change the law, and on top of that adapt it to accomodate the behaviour of the people that started breaking it, then you have to provide quite convincing arguments (preferably in the form of macro-economical studies) that this is a good thing.

Yes, i agree the system has been flawed and needs reform, but the fundamental idea is sound. Why should software be any different? To claim that you have absolutely the default position is nonsense; it's

It would be nice to see something similar for the other countries.

There is a link to a list of other countries on the page that you linked to. It doesn't have a detailled commentary and analysis, but this is good enough to have an overview of who voted against patents.

If you are living in Europe, take a look at the chart for your country and see who you should vote for. Personally, I am glad that the MEPs that I voted for in the previous election have clearly voted in favor of the FFII and against patents (i.e., they got a high score in the chart). I will vote for them again in a few days.

I can vote against him!

Looks like I might bother voting for the first time in a Euro election. Might even write to him and tell him why.

Let's look at those costs and see how many of them are actually required and how many could be done by the applicants/OSS community:

EPO Fees: 4300 - Required by the EPO
Professional Representation: 5500 - Optional, the cases could be filed pro se for free

This is extremely discouraged. Even someone from the European Commission whom I talked to (the person who is handling the software patents directive in the Commission) admitted you have very little chance to get your application approved if you don't have any experience with patent law.

These people are programmers, not lawyers!

Translation: 11500 - Optional, could easily be done by bilungual volunteers

Not optional, it must be translated into all official languages of the countries where you want your patent to be valid. And you don't have to be just a "bilingual volunteer", you have to be a "bilingual volunteer with lots of time and who knows the patent jargon in both languages".

National Renewel Fees: 8500 - Required by the EPO

So, in the end with a little work the cost of a patent for a 10 year term becomes EUR 12800 or EUR 1600 per country. I really don't think this is excessively high for anyone serious about OSS projects, epecially since it could be raised by funding drives.

A "little work"? EUR 12800 not excessively high? And why on Earth should only "serious" OSS projects be allowed to be viable? It's like saying that only people who write for a living should be allowed to publish; the rest only does it as a hobby and thus should put up or shut up.

FWIW, I personally work on an open source project, which exists already for about 13 years (see url in my info). We have over 10GiB of downloads per day on our main ftp site alone (I don't have statistics on the mirrors). It's used by several companies and universities all over the world.

We do not have EUR 12800 or even EUR 1000. Why should we and other people start to have to pay and spend time on learning patent jargon and translating it so that we can continue our hobby project (which happens to be useful for other people)? What does society as a whole gain from this extra burden?

And what can you do with a single patent when a company like IBM or even Microsoft attacks you? Make paper planes to throw at them in a the court room, in a lawsuit that costs another EUR 50,000 ($1 500 000 if you're unlucky and sued in the US), and which requires time which you would normally spend doing your day job earning money that allows you to spend time on your hobbies?

Besides, there's much more than open source projects. If you take an SME, then there are even no imaginary volunteers which are ready to do whatever you ask. They have to pay all those things by themselves. It's them who will be hit the worst. They most certainly do not have EUR 12800 to spare, much less EUR 30000 (or EUR 50000 according to the European Commission -- google cache because original site seems to be down).

Since you didn't bother to link to whatever FTC study it is you are talking about, I can't really respond to it. Although just on the basis of what you said I'd question if they were studying the national effects of patents on the economy or the individual effects on a company/inventor.

That's indeed what they were studying. The original study and an extract of all software patents related stuff (it's on a page of FFII UK, but page numbers are given and if you compare it to the original, you'll see it's uncommented and really does contain all software

To me SCO's license policy looks like fraud, its PR policy like financial fraud. Let's report the offence to the police.

It's time for a structural change in the US legal system, competition law has tpo be strengthened. A baseless dirty media campaign like SCo's would be impossible on the European market. However the EU legislator prepares a IPR Enforcement directive that may give power to failed companies that "pull a SCO". Several law principles are weakened. I think the IPR Enforcement directive may infringe on German constitutional law.

I want to see SCO's management in prison.

I think the appropriate defence against SCO in Europa is to report the offence to the police. Their license policy looks to me like fraud, their communication policy toward the capital market like financial fraud. The managers will have to be held responsible. The US american market place is harmed very much by this failure of US competition law. According to German legal standards it would be impossible to act like they did on our market. Daimler-Chrysler, being a German-Us company will knock SCO down by their lawyers and probably be able to call for changes in the US legal system. After all they did I want to see SCO's management in prison. Intellectual property is a WMD for failed companies. I hope the European legislators will be able to stop the IPR enforcement directve, a demontage of Rechtsstaat principles in order to avoid that compynies "pull a SCO" here.

Mr Lenz, read the 6 feb text of the directive, you are a professor of law, you will get soon that it is a totally premature draft, just look at the language used. There is so much confusion in the text. Why do we need for instance rules who to calculate the damage as civil right may be enough. And read how the damage is "defined".

Intellectual property rights is used as a term but nowhere defined. see Art 3.

It is a law written by radicals and lobbyists, but horrible from a law system perspective. I found the FFII position about this crap very moderate. You can read it here.

Mr Lenz, read the 6 feb text of the directive, you are a professor of law, you will get soon that it is a totally premature draft, just look at the language used. There is so much confusion in the text. Why do we need for instance rules who to calculate the damage as civil right may be enough. And read how the damage is "defined".

Intellectual property rights is used as a term but nowhere defined. see Art 3.

It is a law written by radicals and lobbyists, but horrible from a law system perspective. I found the FFII position about this crap very moderate. You can read it here.

The FFII position is the industry view. It is quite moderate and I think they don't agree with the wording of the alert on slashdot although it may be helpful. Read the original position of FFII before you accuse them.

I qoute:
The IP Enforcement directive is very important legislation. It should give businesses a familiar single legal landscape for IPR enforcement issues right across Europe; and stamp down hard on organised criminal counterfeiting and piracy.[..]This is very sensitive legislation. The directive represents a once-in-a-generation change to the legal landscape that companies have to deal with on Intellectual Property Rights - copyrights, trademarks, patents, confidential information etc etc. Hardly a single company of any size will not be affected in some way. It is of fundamental importance that this legislation is got right first time.
FFII view
FFII fully supports firm action to crack down on organised counterfeiting and piracy. But FFII is very concerned by the danger of unscrupulous operators "pulling a SCO" with groundless claims of IP infringement, and misusing the very powerful measures contained in the directive to unfairly harass and damage legitimate companies. FFII believes that the best course would be for the directive to be limited to its original proposed scope, namely commercially organised, fully intentional copyright and trademark infringement.

FFII is a strong supporter of copyright and also is not against the scope of the directive, there are other more fundamental critics like IPjustice and so many other groups that helped to get the DRM out of it. FFII was quite a long time not very concerned about the directive as the patents were taken out, but now they are in again.

The problem from the FFII and industry side is: the directive mixes up different intellectual property rights and let stricter enforcement targeted to product privacy apply for patents as well. Given the fact that patent infrigements are usually not-intented and patents are usually more fuzzy defined this is totally inappropriate. The industry and FFII fear that the directive messes up the EU legal system. So to speak a free Kalschnikow to patent privateers.

See detailed information about FFII's position here. And don't discuss short quotes.

You misunderstood the case. This IPR Enforcement directive is NOT about the legal validity of software patents. The software patents directive was corrected by the EU parliament in September and is is going to be "recorrected" by the council, so the main focus of FFII laid on this.
SO FFII and all the others (AEL, EF Finland ecc.) defend the current corrected former swpat directive.

The IRP enforcement directive is about enforcement, giving power to the rights owner, orginally against product privacy some persons introduced DRM, TCPA ecc. This was already removed. The problem is as so many different spheres of law are comprised by the unscientific, unjudicial term Intellectual property rules that apply well for product privacy cause much trouble for patent enforcement. FFII UK explains this very good on their site.

There are several groups that critizise the directive, FFII has a moderate position as they are in favour of copyright. I suggest you to read the current council draft of the directive by yourself and look for problems. You can easily see in the proposal that it is premature. The language used is often inappropriate and infringes on certain legal standards.

Good news: DRM and TCPA was deleted, most groups were concerned about this, so the directive already failed from the viewpoint of those who drafted it. We won! So let's get rid of the ugly rest.

"Article 21
Legal protection of technical devices

Deleted"

But this does not mean that it will not be reintroduced by MEP amendments ecc. Criticism of the directive goes trough all parlamentary groups.

What FFII wants get out is that the directive also apply for patent legislation. Because patent infringements are very easy and criminal sanctions against patent legislation may be a danger for business. This is also the industry position. FFII is no mayor player in the IPR Enforcement debate. Most was done by IPjustice or other DRM activists. FFII was very busy with the swpat directive, so they could not devote time to the IPr enforcement directive or ENISA.

You misunderstood the case. This IPR Enforcement directive is NOT about the legal validity of software patents. The software patents directive was corrected by the EU parliament in September and is is going to be "recorrected" by the council, so the main focus of FFII laid on this.
SO FFII and all the others (AEL, EF Finland ecc.) defend the current corrected former swpat directive.

The IRP enforcement directive is about enforcement, giving power to the rights owner, orginally against product privacy some persons introduced DRM, TCPA ecc. This was already removed. The problem is as so many different spheres of law are comprised by the unscientific, unjudicial term Intellectual property rules that apply well for product privacy cause much trouble for patent enforcement. FFII UK explains this very good on their site.

There are several groups that critizise the directive, FFII has a moderate position as they are in favour of copyright. I suggest you to read the current council draft of the directive by yourself and look for problems. You can easily see in the proposal that it is premature. The language used is often inappropriate and infringes on certain legal standards.

Good news: DRM and TCPA was deleted, most groups were concerned about this, so the directive already failed from the viewpoint of those who drafted it. We won! So let's get rid of the ugly rest.

"Article 21
Legal protection of technical devices

Deleted"

But this does not mean that it will not be reintroduced by MEP amendments ecc. Criticism of the directive goes trough all parlamentary groups.

What FFII wants get out is that the directive also apply for patent legislation. Because patent infringements are very easy and criminal sanctions against patent legislation may be a danger for business. This is also the industry position. FFII is no mayor player in the IPR Enforcement debate. Most was done by IPjustice or other DRM activists. FFII was very busy with the swpat directive, so they could not devote time to the IPr enforcement directive or ENISA.

Europe isn't entirely a legal black hole, you know.

It's worth noting Article 2.1:

the measures and procedures provided for by the Directive are to be "without prejudice to the means which may be provided for in national legislation, in so far as these means may be more favourable for rights holders",

(4) At international level, all Member States, as well as the Community itself as regards matters within its competence, are bound by the Agreement on Trade-Related Aspects of Intellectual Property (the "TRIPS Agreement"), approved, as part of the multilateral negotiations of the Uruguay Round, by Council Decision 94/800/EC5 concluded in the framework of the World Trade Organisation.

(5) The TRIPS Agreement contains, in particular, provisions on the means of enforcing intellectual property rights which are common standards applicable at international level and implemented in all Member States. The provisions of this Directive should not affect Member States' international obligations, including those under the TRIPS Agreement.

Without prejudice to the civil and administrative measures and procedures laid down by this Directive, Member States may apply other appropriate sanctions in cases where intellectual property rights have been infringed.

The other point is that it is absolutely against any idea of good lawmaking for rightsholders to try to crash this through all its remaining Parliamentary stages in three weeks flat.

It's fine to oppose something on principle but the FFII's alert doesn't seem to be proposing any alternative solution, other than "not what you've got", which weakens their stance IMHO. If they want to make a stand on IP, then they should do so instead of just being naysayers.

You might like to look at the amendments being canvassed by Andreas Dietl of European Digital Rights (EDRi), which you can find on the FFII website.

Strangely enough, this is just what Janelly Fourtou told us in Strasbourg last week, just after she tried to persuade MEPs that we were talking about an out-of-date draft of the Directive -- which we weren't; and just before she told us that she too has been trying to take patents out of the Directive -- which, according to minutes of recent 'Trialogue' meetings, she hasn't. (Mme Fourtou is the MEP who is steering this through the Europarliament, and entirely coincidentally happens to be the wife of the CEO of Vivendi-Universal)

It simply isn't true.

Anton Piller orders are currently only available in the UK and France ("saisi-contrefacon"). These secret court authorisations of raids for evidence carried out by the plaintiff's own agents are not available in any of the other states of the EU.

Furthermore, after very strong criticism from the most senior judges, in the UK a strict new code of practice was brought in in the early 90s which cut the number of applications granted by a factor of ten. (See this page for references to the detailed cases). The judge who led that criticism, Lord Scott, was subsequently head of civil justice for five years, and is now one of the Lords of Appeal in the House of Lords -- the most senior court in the UK. He now chairs the House of Lords scrutiny committee which has refused to clear this legislation. If he is concerned about the detailed text, then we all should be.

We are talking about unannounced dawn raids by private security firms, piling in with legal authority and seizing entire computer systems and filing cabinets full of documents. That is a terrifying and destructive experience for a small firm.

That is why FFII is arguing that such measures should only be available in the most extreme circumstances, and where there is clear evidence of a deliberate knowing intent to infringe for commercial gain on a commercial scale. Such measures are totally inappropriate where there is no such deliberate piracy, and no such emergency, in cases as complex as those in patent law and disputed ownership of confidential information/trade secrets, which routinely can take five years in court. Such measures should not become automatic standard procedure in all IP disputes.

Furthermore, we think it is simply insane to try to crash through such a major change in the civil justice system -- a truly massive change in the whole legal IP environment for most firms in Europe -- in three weeks flat from publication of the detailed text to final vote in Plenary, short circuiting all the normal three readings procedures of the Parliament, and before even first publication of the results of the UK consultation and the UK impact study.

No, this is not just FUD.

You don't do that. Don't talk about settled cases. Do act like SCO. Copyright infringements are not discussed in the public. We don't need a enforcement directive, we just need good code and persons who respect licenses.

Is this just a minor side effect of a basically beneficial system that will simply work itself out as the patents are challenged? Or does this have to be fought?

If this is something that needs fighting, it would be good to know who is doing this, either on a grassroots level or as elected officials.

In the US, I guess it's mainly the EFF and FSF, but I'm not very familiar with the situation there.

The originality typically lies in the sequence of steps, not in the wet details of what kind of solvent or container, much as the originality of a software program lies in the sequence of steps, not the details of the computer hardware.

There are very good reasons for that, and most of those reasons apply equally well to software. Software is different and patent law was not designed with it in mind. Neither was copyright, for that matter, which is why some people argue there should be a third paradigm between copyright and patents to specifically protect software (as explained on the last linked page).

Until we have discovered/developed such a paradigm however, copyright is much more suited to protecting software than patents are, since patents do more harm than good as shown once more bythe recent FTC study.

I suggest you to read the report of the US fderal trade commission. Or support FFII UK or the FFII Call for Action II.

There will be several swpat conferences and lobby actions next year.

We have to join forces and get rid of the inefficient software-patent system. In Europe it is still semi-legal. Let's support the EU Parliament's directive against the united scum in the national DOJs.

"Even to IBM most patents are not a cash cow. A small number of their patents bring in a lot of money, but most of them don't bring in any money."
Arnoud Engelfriet, NL patent attorney

There is a nice page of FFII UK that explains what can be done.

My point was that that patents are allowed in almost all technical areas so why not for software?

If you place one Lego brick on the ground, it will just sit there. Put one or two on top, and you'll still have no problem. If you put 100 Lego bricks right on top of each other, you get a very unstable structure. So even in this very simple physical environment, things that behave one way in the small, may behave quite differently when used in a more complex whole.

With software, this is not the case. One small, sound logical reasoning remains just as valid in a larger whole. Software development by its very nature consists entirely of combining all kinds of small logical constructs into a, non-obvious or not, bigger whole. And software is being innovated every day, because if you don't innovate, your competition will and you will lose whatever edge you had.

Please read this study, carried out by the Max Planck Institute and the Fraunhofer institute (by no means anti-swpat establishments) for more on why software is different and how software development works differently. For a more philosophical approach, in case you want to understand why those empirical results are what they are, see this page.

Broadness of initial patents is just a passing phase and open-source fanatics are damaging the overall purpose of software patents which is to develop a repository of knowledge

Some quotes:

• One panelist stated that "the [patent] system discourages you from looking very hard [at patent disclosures] because ... simply by virtue of poking around to find out what patents exist you expose yourself to willfulness claims which can triple the amount of damages and exposure to attorney's fees."
• The panelist summed up the problem with the statement "there's too much information and it is no longer meaningful."

which would otherwise be locked up in the vaults of giant corporations.

How come? Because you publish software, you don't manufacture it (just like you don't publish an industrial valve or a chemical reaction, you manufacture or conduct those). Publishing by definition is "making public". It's the same with business methods: either you use a business method and it automatically becomes public, or you don't use it.

Software patents are a giant corporation's wet dream, because they pretty much only benefit the patent holders.

getting a patent or filing a patent, can at least provide some tangible property/proof of a concept, that can enable a startup or small firm to get investors, thus building their business. Its the business standpoint that most people here on slashdot don't consider

How long till that bubble bursts as well? Unless you're a company like Eolas, you don't build a business on software patents. They also don't really help, except if you are attacked by someone else for infringement on their patents (which again is not possible if there are no swpats in the first place). For a business to be succeed, it needs actual products, customers, etc, not some pieces of paper that let it appropriate some general principles when implemented on a computer.

People may complain about abuse, but isn't it better that via the patent system, people disclose their inventions instead of hiding behind trade secrets, thus allowing others to improve upon the initial invention?

First of all, a lot of software patents are simply business methods implemented in a computer program. By their very nature, if such business methods are put to use, they become public (since you use them to interact with the public).

Secondly, most companies forbid their employees from reading any patents, for the fear that it will result in them being sued for willful infringement (making them risk tripple damages and attorneys fees)! Besides, in general the developers can put very little of the patents to use because of all the legalese and the absence of source code.

As someone in the FTC study says "there's too much information and it's no longer meaningful".

Let's hope we get the law as the EU parliament framed it....

and why is that exactly? the FAT code in the kernel is *not* microsoft's, it was written by the linux programmers themselves.

Otoh, patents do not make this discrimination. The only exception is that if you used a patented technique before it was patented (but you never published it, so your work cannot be considered as prior art), then you can continue to use this technique *for personal use* even after the patent has been granted (which excludes any commercial use afaik, though I'm not certain of this). If you independently came up with it after the patent was granted, you're completely out of luck.

The reasoning is that patents exist to protect big investments in R&D, which generally wouldn't have occurred if there was no way to safeguard the results from imitation with patents. So patents are considered as some kind of necessary evil (temporary monopolies), required to promote innovation and disclosure. Of course, in case of software patents this reasoning is almost never true and you are pretty much stuck with only the negative sides.

The lawyers dictate the law.

You'd better talk to your department of Justice now or ask the ministers of economy to put pressure on the justice ministers. Also for parliamentary initiatives is now the right time.

The council of ministers will decide on nov 10th. They are not bound by the EU parliament's decision as national governments are only accountable to the parliament. And the uk is likely to push for a horribel proposal. Note: now the government groups themselves decide about this issue.

Take a look at FFII UK's call for action and adapt it like the German Gnus did.
Or write your own call for action.

You can track the latest news on this issue via AEL wiki. And there are national European FFII mailing lists, for instance for denmark dk-parl@ffii.org (Mailman Interface)

Copying form letters is very bad - they don't get read. But if you're wondering about how to use LaTeX you might want to look at some stuff wot I wrote earlier today. (mp_letter.tex in that directory; the other .tex files are earlier stuff.) I don't want to hold it up as a great exemplar though... write your own words and opinions. (But follow the FFII guidelines!)

Here is a deconstruction of the Labour MEP Form Letter.