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I've now also put a full transcript of his speech online.

what happens if somebody sues a Chinese company. Can't China just claim that they will not honor any software patents on any software or on Linux specifically? It's not like they have a history of respecting other countries IP rights.

Listen to this speech (mp4 audio, 3.9 MiB) given by David Martin from M-CAM at the FFII conference on software patents from last week. His company is specialised in assessing the value of patent portfolios and technology transfers. Here's part of a transcript of his speech:

For the last five years, the United states has had a very active policy of actually the alleging the Chinese steal things. They steal things, they're bad people because they steal things. That's a very funny position, and it's couched in the "you don't respect intellectual property".

So what you have is, you know Chinese don't respect intellectual property, therefore they steal things, therefore because MPAA and RIAA say that they steal things, we have to all tell the masses "yes, in fact, they steal things".

There's a funny reality unfolding. The funny reality is that the Chinese are actually saying "I wonder if you can pull the pin out of the grenade and throw it back". And by that I mean this: what if the patents that are being asserted to be stolen or copied or infringed aren't actually worth the paper they're being printed on and what if the Chinese using their sovereign rights actually challenge those patents.

What would happen then? Well let's play that tape for a little bit more because I think at last calculation 43% of the US currency is actually owned by the Chinese, because we are very fond of debt. We're extremely fond of debt, so much so that we've sold our currency to the Chinese and they currently own our debt.

Now add to that the fact that they also have a lot of people and a lot of resources to call into question the due process of all bad patents. Guess what happens. Who wins? I'm gonna submit to you that everybody loses.

Listen to the rest of his speech for more. I guarantee you it'll be worth your while. For the record, he concludes his speech with

"If we don't actually confront the integrity problem, which says that we are stimulated to issue garbage (...), we're rearranging deck chairs on the Titanic."

Nice to hear that from someone in the field, isn't it?

Poland just recently decided against supporting software patents in the EU. Does that mean they will not respect other countries' patents on software or just that they will not go along with Europe issuing them?

Unlike in the US, the introduction (or not) of software patents in Europe is being handled via a legislative process (as opposed to purely via case law). For an overview of the legislative process, have a look here. The bottom line is that it's currently the turn of the European Council of Ministers, which has to reach a qualified majority for one text or another. The current text is hardcore pro-unlimited patentability.

Now Poland has confirmed they do not support that text (they weren't even formally asked after a break in a meeting in May where some fake compromise amendments were introduced, and where a political agreement was reached). Together with a change of voting weights that went into effect on 1st November (because of the expansion of the EU), this means there is no longer a qualified majority for the current text.

So it has nothing to do with not respecting other countries' patents. Besides, a patent is always only valid in the country it has been granted in, that's how pat

• ZDnet: Patent opponents claim success
• Infoworld: Polish rejection may derail EU patent directive
• The Inquirer: Poland scuppers EU software patents directive
• EDRI: Poland blocks EU Software Patent directive
• NoSoftwarePatents.com: Polish Cabinet Against Software Patents

See also FFII's Breaking News wiki

The Council of Ministers' first reading text had been scheduled for fast-track approval before the end of the year, probably by Agriculture and Fisheries ministers.

• ZDnet: Patent opponents claim success
• Infoworld: Polish rejection may derail EU patent directive
• The Inquirer: Poland scuppers EU software patents directive
• EDRI: Poland blocks EU Software Patent directive
• NoSoftwarePatents.com: Polish Cabinet Against Software Patents

See also FFII's Breaking News wiki

The Council of Ministers' first reading text had been scheduled for fast-track approval before the end of the year, probably by Agriculture and Fisheries ministers.

I'm a fellow lone coder.

<aol> Me too </aol>

...I'd say that the GPL ... generally make it tougher to make a living.

And I'd say that the GPL is the one thing that guarantees we'll continue to be able to make a living. The GPL and keeping software patents out of Europe are the two things... Sorry, I'll come in again.

No-one expects the Polish Opposition!

Everybody knows that Spam filter technology is covered by many trivial software patents. In Germany there was a case Nutzwerk vs. cobion. Patent trolls like spam-filter patents. You can search the patent database http://gauss.ffii.org Unfortunately spam is not named spam. As far as I remmeber Eolas and McAfie also hold anti-Spam patents. It is worth to start a collection of swpat. Note that currently some large corporations funds a company that buys bad patents from patent trolls.

Software patents are bad for the market and patents that have to be granted royality-free are not worth the transaction cost burden the software company pays to the patent industry (= patent professionals). Patent trolls contribute much to market insecurity in the software market.

I hope in Europe we will get safe from software patents. It is worth to fight for that.

I don't believe that conceptual protection of software was bad but patents ARE the wrong instruments. Players such as FFII's Hartmut Pilch propose Industrial Copyright to fill the gap. It there is a gap.

For the EU Patent directive European market players need certain amendments into the directive.

Yahoo could save wasted money.

To find out more about patents I recommend a short introduction text of FFII.

Software patents are bad for the market and patents that have to be granted royality-free are not worth the transaction cost burden the software company pays to the patent industry (= patent professionals). Patent trolls contribute much to market insecurity in the software market.

I hope in Europe we will get safe from software patents. It is worth to fight for that.

I don't believe that conceptual protection of software was bad but patents ARE the wrong instruments. Players such as FFII's Hartmut Pilch propose Industrial Copyright to fill the gap. It there is a gap.

For the EU Patent directive European market players need certain amendments into the directive.

Yahoo could save wasted money.

To find out more about patents I recommend a short introduction text of FFII.

This is why in Europe both, the free software community and the small and middle sized corporations are all fighting hard to prevent software patents: http://kwiki.ffii.org/SwpatcninoEn
The Linus defense http://uk.builder.com/manage/work/0,39026594,20276 078,00.htm of not researching what patents you might infringe will help you a bit by possibly avoiding punitive damages when/if you get sued, since you can claim not to have infringed willfully on a patent. But it won't decrease your lawyer bills for defending yourself in the slightest and neither will it decrease the future licensing costs. So if you are stepping on any big corporation's toes or are in the same business as another, failing company (*cough*SCO*cough*), it is highly likely you might get sued successfully for infringement

You'd get large companies spawning fake small companies and later buying them up (together with their patents), or simply taking licenses on those patents. And your proposal would not solve the litigation problem in any way. Have a look at the (later slides in) presentations given by Brian Kahin and Jim Bessen at the FFII conference from last week.

You'd get large companies spawning fake small companies and later buying them up (together with their patents), or simply taking licenses on those patents. And your proposal would not solve the litigation problem in any way. Have a look at the (later slides in) presentations given by Brian Kahin and Jim Bessen at the FFII conference from last week.

You'd get large companies spawning fake small companies and later buying them up (together with their patents), or simply taking licenses on those patents. And your proposal would not solve the litigation problem in any way. Have a look at the (later slides in) presentations given by Brian Kahin and Jim Bessen at the FFII conference from last week.

That person is specialised in figuring out the real value of patents (that's what his company does), and the picture he paints is not a pretty one. Not by a long shot. And it's confirmed by the talk given by Ian Lewis given afterwards (sorry, don't have an extract from that, you'll have to download the full Tuesday panel 3 discussion for that). He's from one of the largest UK insurance companies. He told the audience that every single insurer that offers "IP-insurance" is turning in a loss on those insurances, despite the exorbitant rates they charge.

There is something very rotten in patent land. And as far as the current European situation is concerned: extending the scope of patentability is not the solution.

Listen especially from 2m40 on, to learn why this whole "IP exportation" stuff is already backfiring tremendously today.

Actually it does, otherwise the USPTO wouldn't try to influence the European discussion. You can bet that if Europe does not legalise software patents, this will have quite a profound effect on the US situation. At least the whining "abolishing software patents is not realistic" whiners might shut up, for a start.

Case in point: offering one company a monopoly on selling things via the internet, makes investment in all online shopping companies a lot less attractive

Your example monopoly is a bit broad, and would indeed stifle the market; however, patents are not nearly as broad. You essentially describe a patent on the entire industry, an absurd example, and the only one in which your point holds.

FWIW, the first claim of the MP3 patent mentioned on that page is extremely broad as well, and doesn't just cover MP3 compression by a long shot. In fact, I've still to encounter a software patent with narrow claims. And yes, I know the first claim of a patent is always as broad as possible and that the rest refines on this, but you still have to go to court to defeat the broad claim (or take a license, which is often much cheaper and thus the preferred option).

The economy is exactly why software patents should exist.

Not all large companies may favor software patents (particularly those who have not invested heavily in IP protection);

but lots of money has gone into developing software *because* of software patents.

It is good for startups too, who can protect an idea and attract capital from investors.

Investors like property rights.

It seems to me that patent rights in software can co-exist with open source. They co-exist now

Maybe we should approach the battle against software patents the other way around. Instead of looking for ways to protect against patents and/or get patents for OSS, why not play the game out to its ultimate consequences. Start up a website and start matching patents with software products: when a likely match is found, notify the patent holder, the software vendor and possibly the software users of this potential patent violation. For the large fish (IBM, Microsoft, etc.) focus on the patents of patent trolls: litigation companies existing merely of a patent portfolio. If lots of companies are targetted, this would create a lot of publicity and when there's a website to back up the claims, there's a lot of proof about the untenability of the situation. Furthermore: it only takes work, not deep pockets to do this.

If the situation is as bad as is claimed, this would mean that any software vendor and/or webshop is forced to concede the fact that they can be put out of business overnight due to patents. Once this awareness is there it would just be a matter of time before the case law is overturned. As an example see this site. Imagine it targetted at real software products and real webshops. Probably we can match a couple of hundred patents to any particular product/shop, showing the seriousness of the situation, while at the same time confronting the potential victims with it. I know, this is a real weird proposal, but the question is: would it do the trick?

Besides, this proposal has a problem of its own: software patents can include so-called "program claims". In that case, not just the use of a program which infringes the patent, but also the publication of such a program can be forbidden. Many software patents (and even non-software patents) are starting to include those.

If you start adding source code to patents, then those patent descriptions themselves can infringe on other patents. It's completely silly since the patent system is supposed to encourage publication of information, but nowadays it can also be used to for forbidding publication of information (because some people think software is the same as a "machine", instead of simply a description of something).

And the problem is that Novel does not support legislation to properly ban software patents in Europe. They use weasel words intended to mislead the casual reader about their stance on the legalisation of software patents in Europe. See the comments by Hartmut Pilch from FFII.

Bare with me here. These guys have pattended a licensing method that does not conflict in any way with the licensing methodes used to promote free exchanges of information. The only people this affects is other proprietary information horders.

Anyway, I think this kind of waste of money is never good. First you have Sun spending money on trying to get thispatent, and if they get it, someone else may try to destroy it again. This is all money that is simply wasted. It does not help the economy to go around, except for the lawyer-economy. It's money that's diverted from tech to some non-producing entities, which is not good.

I think we're better off if Sun invests more money in cool projects like DTrace than in silly patent applications like this, regardless of whether you like Sun or not. The former may at least result in usable functionality for their customers (and may even be open sourced so it becomes available to many more people). The latter only results in money for the USPTO and lawyers.

Bare with me here. These guys have pattended a licensing method that does not conflict in any way with the licensing methodes used to promote free exchanges of information. The only people this affects is other proprietary information horders.

Anyway, I think this kind of waste of money is never good. First you have Sun spending money on trying to get thispatent, and if they get it, someone else may try to destroy it again. This is all money that is simply wasted. It does not help the economy to go around, except for the lawyer-economy. It's money that's diverted from tech to some non-producing entities, which is not good.

I think we're better off if Sun invests more money in cool projects like DTrace than in silly patent applications like this, regardless of whether you like Sun or not. The former may at least result in usable functionality for their customers (and may even be open sourced so it becomes available to many more people). The latter only results in money for the USPTO and lawyers.

Well they are not strong enough. What is more important is to interfere in early stage of consulatations, see upcoming EU-consultations.

Alea iacta est. The only thing they can win is to stop it. Only lobbying as the industry does can help to defend our interests.

It is a question of lobbying power. Speeches,
demonstrations, lobbying in Brussels. The real problem is the lack of support. There will be so much too lose with a software patent system. But it is difficult to get enough money for lobbying activities. Organisations such as FFII act with almost no budget and organise so many events.
Anti-softwarepatent Demonstration with RMS in Amsterdam. what is even more important is professional expertise and action at an early stage of development, see "upcoming EU Consultations".

Or do you really think that it's the lawyers telling the commpanies what to patent?

Then again, there are also some heads of IPR departments who readily concede their patenting bonanza has nothing to do with investment protection or innovation, such as Robert Barr of Cisco during the FTC 2002 hearings.

Or do you really think that it's the lawyers telling the commpanies what to patent?

Then again, there are also some heads of IPR departments who readily concede their patenting bonanza has nothing to do with investment protection or innovation, such as Robert Barr of Cisco during the FTC 2002 hearings.

Or do you really think that it's the lawyers telling the commpanies what to patent?

Then again, there are also some heads of IPR departments who readily concede their patenting bonanza has nothing to do with investment protection or innovation, such as Robert Barr of Cisco during the FTC 2002 hearings.

If that flies, next I'll patent discounts off MSRP, that'll be really slick.

This reminds me of the stealing with a further ethical effect analogy to the granting of software patents in Europe.

Nope. It doesn't. But the EU commission is discussing about legalising SW patents in Europe.

More about it here

You say that like America doesn't ignore international treaties all the time.

Promote harmonization in the framework of the World Intellectual Property Organization and its Standing Committee on the Law of Patents; resolve major issues in a broader context and pursue substantive harmonization goals that will strengthen the rights of American intellectual property holders by making it easier to obtain international protection for their invention and creations.

Perhaps the treaty should be amended as well. I'm sure any third world signatory who has had to sit and watch its citizens die waiting for medicine to become affordable would be more than happy to sign off any amendment weakening it.

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.

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.

I guess I don't understand the EU proposal regarding software patents. Here in the US, there is no specific regulations regarding software in regard to patents. Some inventions are accomplished using software. Patentability (in theory) is based on novelty, originality, etc.

There's also the very important concept of "patentable subject matter", i.e. whether or not it potentially could be patentable at all. Although in the US this concept has been widened to "everything made by man under the Sun", this still excludes some things (like e.g. laws of nature). In Europe, there are more exclusions (see below).

Admittedly, we have some problems with trivial things being patented, which in turn set precedent that led us down this spiral.

The problem with trivial patents is basically inherent to the patent system. "Non-obvious" does not mean the same in patent law as it does in real life. It's basically an extended novelty test: novelty checks whether or not what you claim to be your invention has already been published somewhere or not, non-obviousness tests whether it isn't a literal (and then I mean really "literal") combination of published things.

The reason is that it is impossible to set an objective standard which can be consistently applied to determine the "inventiveness height" or so. For the patent office, it is however very important to have such a standard. Patent officials know this, see e.g. this discussion between a deputy director of the UKPTO and a programmer. There is nothing you can do about this without overhauling the entire way patent law works, and people are very reluctant to do this. You cannot "fix" it by improving examination.

Now, traditionally, it has been assumed that despite its flaws, the patent system had an overall positive effect. If you patent a trivial improvement to a hammer (e.g. a hook at the bottom to you can hang it onto a wall), this patent could have little value (because people may be able to work around it easily, or because no-one would be interested in your improvement).

Since software is pure mathematics (all a computer can do is compute), patenting improvements in software itself is patenting math improvements (when this math is interpreted by a computer). Pretty much all math improvements are trivial by design. The whole mathematical system is built that way. And patenting one improvement blocks a whole lot of other people. Someone even made a theoretical proof using lambda calculus showing that because of this, several assumption made about the patent system simply are not true for software.

From your description, it sounds like the EU has a similar set of criteria. So what is the proposal regarding software patents?

In Europe, currently there are 4 requirements for patentability: you have to have an invention (patentable subject matter) and this invention must be new, non-obvious and industrially applicable. One by one:

• invention: since you don't know what will still be invented, you can't positively define what an invention is. Therefore, they have adopted a negative definition, i.e. a list of things that are not inventions. You can find the list in Article 52(2) of the European Patent Convention (EPC). Among others, the list of exclusions includes mathematical methods, rules for performing mental acts and computer programs.
• Novelty: not yet published anywhere
• Non-obviousness: not a literal combination of other published things
• Industrially applicable: you can make money with it.

Now, in article 52(3) of the EPC (on the same page), they say that the exclusion of those things being inventions only applies to those things "as such". This originally meant that if

Check out European patent EP0,129,439. This is the European version of the infamous "gif" LZW patent that was enforceable in Germany, France, Britain, and Italy until June of this year.

It was most likely enforceable in the UK, as there the courts generally do uphold software patents. The highest court in Germany traditionally nullified most software patents in court cases however, though the last few years some exceptions have occurred. I don't know the case law of Italy and France regarding software patents.

I do know that for example in the Netherlands, no one has ever even tried to enforce a software patent in a court however. So claiming that a directive which clearly makes software patents always enforceable simply "harmonises the status quo", is definitely not true. If something is codified, it's at a best a snapshot of the case law of a few courts from yesterday.

Well, a fact is that opposition in the USA is less organised. entering mailing lists is a first step. There are only 21 subsribers to us-parl at ffii.org.

Please support us in Europe. It is crucial that we win this vote, we can take on the other issues later. On the UN level we are already very strong. On the long run we will win.

Well, the political debate in Europe is almost won. There is no real business opposition, it's all about patent attorneys. It remains a power question, the fusioned executive branches represent the interests of patent attorneys.. We have to adress the issue of software patents worldwide, also in the USA.

US-Parl software Patents mailing list of FFII

What we can do? We can get organised. As a US citizen you could join US-parl@ffii.org.

There are similar lists for EU member states de-parl, fr-parl, nl-parl and so on.

FFII is a very successful software patents criticism advocacy group. FFII's news site covered the PWC story ~ 14 days ago.

What we can do? We can get organised. As a US citizen you could join US-parl@ffii.org.

There are similar lists for EU member states de-parl, fr-parl, nl-parl and so on.

FFII is a very successful software patents criticism advocacy group. FFII's news site covered the PWC story ~ 14 days ago.

What we can do? We can get organised. As a US citizen you could join US-parl@ffii.org.

There are similar lists for EU member states de-parl, fr-parl, nl-parl and so on.

FFII is a very successful software patents criticism advocacy group. FFII's news site covered the PWC story ~ 14 days ago.

P.S. I'm well aware that the site I linked to in turn only links to EU patents. Since the original poster referred to the U.S., maybe this will help: http://swpat.ffii.org/patents/effects/index.en.htm l
Or this: http://swpat.ffii.org/patents/effects/1click/index .en.html (Amazon's one-click shopping patent).
Dan.

P.S. I'm well aware that the site I linked to in turn only links to EU patents. Since the original poster referred to the U.S., maybe this will help: http://swpat.ffii.org/patents/effects/index.en.htm l
Or this: http://swpat.ffii.org/patents/effects/1click/index .en.html (Amazon's one-click shopping patent).
Dan.

Huh? Are you kidding?
Don't tell me you're not aware of patents on such things as clicking a button a bit longer (MS), selection palettes in dialogs (Adobe), etc. MANY software patents, esp. in the U.S. are *extremely* trivial.
Check this out: http://webshop.ffii.org/
Dan.

Actually, according to this I believe he was instructed to change his vote - but he is still refusing to do-so

Most interesting is the fact that the Dutch parlement is trying to force Minister Brinkhorst to change his vote and that he continues to refuse to do so. The only reason he seems to be able to get away with this is that it is not a political issue, because the Dutch media not understanding software patents is not giving it any attention. The infection in the feet of our prime minister is far more interesting. (The latest rumours are that it was a rather serious infection, which might have killed him.)

It's really scaring !

I wonder when it will stop !!!

Technologie becomes frightening :
http://www.carrefourtechno.com/carrefour/sites/fo/ redir.php?c=1&g=1&m=1&u=219&l=fr_FR&k=1rY1hD5hH7sx aMHYrKYgEtHw9ULgkahttp://www.carrefourtechno.com/c arrefour/sites/fo/redir.php?c=1&g=1&m=1&u=219&l=fr _FR&k=1rY1hD5hH7sxaMHYrKYgEtHw9ULgka

or : http://swpat.ffii.org/

There are two opportunities left. The Council of Ministers has already voted in favour of a pro-swpat text, but this has yet to be confirmed, and while uncommon, it is still possible for countries to change their vote. Given the extremely suspect way the original decision was reached (which would be scarily familiar to fans of "Yes Minister"), this could happen, but national governments must be lobbied, particularly the Netherlands and Germany.

If this fails, then the European Parliament gets to amend the Council's text, however this is much more difficult than that first time around, and so all Europeans that care about this issue must lobby their MEPs to ensure that they vote in the correct way.

We have made a difference, we can still make a difference, but only by engaging with the political process. If anyone would like to learn more, please visit the FFII website.

There are two opportunities left. The Council of Ministers has already voted in favour of a pro-swpat text, but this has yet to be confirmed, and while uncommon, it is still possible for countries to change their vote. Given the extremely suspect way the original decision was reached (which would be scarily familiar to fans of "Yes Minister"), this could happen, but national governments must be lobbied, particularly the Netherlands and Germany.

If this fails, then the European Parliament gets to amend the Council's text, however this is much more difficult than that first time around, and so all Europeans that care about this issue must lobby their MEPs to ensure that they vote in the correct way.

We have made a difference, we can still make a difference, but only by engaging with the political process. If anyone would like to learn more, please visit the FFII website.

This page considers defenses against software patents. Their idea is to datestamp work that is done so that prior art exists, but in a form that is difficult to search. This makes the legality of software patents questionable. Note that the idea of "prior art databases" (associated with patent offices) is mentioned, but they do not think that such databases are a good idea.

...in the European country of your choice, too.
The main driving force behind these kind of proposals are mainly the center and right of the political spectrum. Just as Bolkenstein (former comissioner and right wing liberal(dutch 'VVD')) introduced the dreaded software patents, so will other right winged.

The amount of energy put into the actions to counteract the european legislators (just like the action against software patents) is huge, but in the end things usually pay off only half, or not at all.
By using your right to choose and elect, and choosing based upon the decisions made by those politicians (pro- or con- the issues you are for/against) you can deal with this thing preemptively.
In the meantime, try to live with the harsh reality but never forget who put this in your lap.