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Open Forum Europe got stitched up.

The patent directive is far from a done deal, as the success of last week's lobbying in Brussels shows.

The important point, that the journalist didn't realise, was that Mike Banahan was not talking about a consultation run by the European Commission or the European Parliament, but about a *consultation run by a firm of lobbyists* who had been hired by a consortium of big business associations. (Remember that OFE's response was paraded not by the Commission, but by this consortium of associations).

So the real story is

Lobbyists for big business [*not* the European Commission or the European Parliament] are determined to introduce software patents in Europe despite widespread opposition from European companies and software developers, according to a UK open-source software lobbying group.

The subsequent paragraphs take on a completely different dimension when you realise they are about the lobbying firm for the business associations, not the European institutions:

Mike Banahan, chief technology officer with OpenForum Europe, a subsidiary of technology lobbyist InterForum, said the group received clear indications during a consultation on the proposal that some form of software patenting would be introduced, regardless of the fact that the consultation showed heated opposition to such patents.

"We were briefed that a position that was in total opposition to patents would be discarded, that that was not a position they were prepared to take," Banahan said. "The position was, given that there will be software patents, what kind will there be? It was presented as a done deal."

OpenForum had not intended to submit a position paper on software patents, as it focuses on end user adoption of open-source software, but the group's opinion was solicited by the organisers of the consultation, Banahan said. The paper was misinterpreted in the press as supporting software patents, he added.

The quotes are echoed in this posting to the FSF Europe-UK list:

He stated (as off the record as he could get in a public forum) his statement on software patents was written from the point of view of - IF software patents were a done deal (and he was informed that they pretty much were, by the people asking him for a statement) then there should be exclusions for Free Software to safeguard the common interests.

He also said (again as completely off-the-record as possible) that he had been told that any anti-patent statement would be discarded, as many others had already.

The parliament vote is now expected in the first week of September. The Socialist group in particular is very divided. But internal party-group positions are expected to take shape this week, while the MEPs are all gathered together in Strasbourg, before they disperse for the long summer recess. It is therefore worth contacting MEPs now, sooner rather than later, to have maximum effect.

Contact details for UK MEPs can be found by clicking on the map here

(This information sent to ZDnet on Thursday night, but apparently not of interest).

The issue is not whether a patent is for "software" or not. The same algorithm can be developed either in software or in hardware.

A specific algorithm that represents a truly novel solution to a problem should be patentable, no matter how it is implemented.

However, software isn't an implementation, it's a notation in a language that ultimately can be understood by a computer (probably after some more translation by a compiler). If you allow patents on software, you allow patents on ideas. After all, why should an idea written in C be patentable in that case, and one in English or some mathematical notation not? It also renders copyright on software completely useless. What good does it do if you own the copyright on a program if it's also covered by 20 patents you don't own?

It's the same as if there would be patents on plot-elements in books... It's not because you're writing the umpteenth book about a serial killer that you're ripping off all authors that wrote about a serial killer before. If you're downright plagiarising someone, then that other person can already defend himself using the copyright protection he got for free.

The goal of patents is to promote innovation by protecting the investment of entrepreneurs. If you carry over this protection to plain ideas, you are actually discouraging other innovators. After all, innovators are bound to reuse ideas other people have had before when doing something new (using RMS' analogy one more time: just like Beethoven didn't invent music from scratch and yet was very original, there's no programmer who can reinvent informatics from scratch - no matter how good he is).

Additionally, several studies have shown that allowing software patents hampers advances in software development. The reason is that companies start investing part of their R&D budget in obtaining patents instead of innovating more. Of course, they want to recoup that. Since big software companies have more patents than small ones, they can usually force cross-licensing deals with those smaller ones or make them pay. So the end result is that:

• Big companies still get access to all advances in software development, but spend less on innovation themselves (see this study)
• Small companies can do less innovation, because they are forced to buy "patent protection" from large companies. They also have to invest money getting patents of themselves, so that they can negotiate lower licensing fees from big companies. That's all money which cannot be spend on innovating.

Say, for example, that Microsoft made some clever algorithm that improved their .DOC file format and patented it. This effectively gives them a complete, legally mandated monopoly on word processing for the lifetime of the patent (which is huge compared to the lifetime of software). Nobody can produce an interoperating program without violating the patent or paying a huge licensing fee. How does this help anyone other than Microsoft?

This is already happening, even in Europe. Read the FFII's horror stories about software patents being used in exactly this fashion, several of them owned by Microsoft. Anyone who still thinks software patents are a good idea should read through this entire page.

Here is a better link from FFII (Foundation for a Free Information Infrastructure).

Thanks, dear AC. For the lazy, here's the full article.

Here is a better link from FFII (Foundation for a Free Information Infrastructure).

Thanks, dear AC. For the lazy, here's the full article.

One of those assistants told me he's never seen such an enormous amount of public attention for a proposal in the two years that he has worked at the European parliament. He thinks there's actually a very good chance of preventing this proposal from getting approved. Really, it's easy to say "all politicians are alike" and "corporations own the politicians anyway" etc, but that's simply not true (note: I'm not a member of any political party nor politically active, except in cases like this). Yes Virginia, there still are a lot of people with a conscience in politics who want to do the best for society at large, they just need access to the right information. In cases like this, people like us can make the difference.

If a non-programmer or non-ip-lawyer reads a proposal like McCarthy's, I can perfectly imagine that it's not that difficult for that person to be convinced that she's indeed trying to protect the software development community at large. The background text of her proposal is really full of misleading and sometimes outright wrong statements to justify her goals.

For example, she cites one study which shows that software patents are beneficial to small and medium-sized companies. In the same footnote, she states that they also looked at several other studies, however, at least one of those concludes exactly the opposite. Nevertheless, the way it is put forth in her text, it seems as if all those studies show exactly the same results. There really are a lot of things like that...

On the contrary, there will be a huge effect. There are already more than 30000 softwarepatents granted, that will become legal (yes, they've been granted illegally), when the EU decides in favour of patents. See here for a few examples.

Here is a better link from FFII (Foundation for a Free Information Infrastructure).

• European companies can apply for software patents in the US, so they could compete there, if software patents would be any help.
• IBM has been granted software patents in Europe already - to enforce them would probably be possible. Still, defendants could hope to have a chance in court on the merit that software is not supposed to be patentable in the EU (explicitly stated in EP Art. 52), but this last straw will vanish when the EU parlament decides to 'legalize' these illegaly granted software patents retroactively.
• Having some patents will not help you to compete against IBM, since you are guaranteed to infringe of hundreds of their patents. Did you know that in 1995, in Europe IBM has applied for - and been granted - a patent for a a method for fullfilling requests of a web browser which effectively describes a dynamically expansible webserver? This is just one of thousands they have

From what I hear though, there is little to fear. The EU patents on software won't allow any patenting of business methods

Accordingly, a computer-implemented business method or other method in which the only contribution to the state of the art is non-technical cannot constitute a patentable invention.

The technical contribution shall be assessed by considering the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective whether or not such features are accompanied by non-technical features.

Anyway, things are looking actually quite good currently. Have a look at this press release, most MEPS are finally seeing that the proposal is completely wrong. I'm in direct contact with several people working with the MEPS and these people are really eager to learn as much as possible about the dangers of software patents.

Europeans, please do something. Phone you MEPs on Monday (or leave a message today and phone again on Monday).

Patents are going to ruin the software industry by handing even more power to the companies that have vast bank accounts and legal team (i.e. the ones that really don't need this extra power).

Read about the affects of patents at:
http://www.softwarepatents.co.uk/

Read the UK patent office's "consultation on software patents":
http://www.patent.gov.uk/about/consultations/concl usions.htm

Examples of bad or missused software patents:
http://www.base.com/software-patents/examples.html

Bad EU patents that have already been issued:
http://swpat.ffii.org/patents/samples/index.en.htm l#pag
(these aren't really enforcable until software patents become clearly legal)

A good proposed amendment:
http://swpat.ffii.org/analysis/epc52/index.en.html
(tell you MEPs to look at this, we have to unite with a definite proposal. Simply saying "we don't want software patents" doesn't give an MEP much to say)

Use the phone. Email is easily ignored. You'll often get answering machines so think of a short useful message to leave, mention the proposed amendment and tell them your sending them an email with the details.

Ciaran O'Riordan

Europeans, please do something. Phone you MEPs on Monday (or leave a message today and phone again on Monday).

Patents are going to ruin the software industry by handing even more power to the companies that have vast bank accounts and legal team (i.e. the ones that really don't need this extra power).

Read about the affects of patents at:
http://www.softwarepatents.co.uk/

Read the UK patent office's "consultation on software patents":
http://www.patent.gov.uk/about/consultations/concl usions.htm

Examples of bad or missused software patents:
http://www.base.com/software-patents/examples.html

Bad EU patents that have already been issued:
http://swpat.ffii.org/patents/samples/index.en.htm l#pag
(these aren't really enforcable until software patents become clearly legal)

A good proposed amendment:
http://swpat.ffii.org/analysis/epc52/index.en.html
(tell you MEPs to look at this, we have to unite with a definite proposal. Simply saying "we don't want software patents" doesn't give an MEP much to say)

Use the phone. Email is easily ignored. You'll often get answering machines so think of a short useful message to leave, mention the proposed amendment and tell them your sending them an email with the details.

Ciaran O'Riordan

If you are a European and bothered by software patents, now is the time to write to (or even email) MEPs asking them to oppose this directive; it's the 'proposed software patentability directive as amended by JURI' (COM(2002)92 2002/0047). The letter should support the FFII/Eurolinux and/or Green position.

• 1. Mrs AHERN, Nuala Group of the Greens/European Free Alliance
• 2. Mr ANDREWS, Niall Union for Europe of the Nations Group
• 3. Mrs BANOTTI, Mary Elizabeth Group of the European People's Party (Christian Democrats) and European Democrats
• 4. Mr COLLINS, Gerard Union for Europe of the Nations Group
• 5. Mr COX, Pat Group of the European Liberal, Democrat and Reform Party
• 6. Mr CROWLEY, Brian Union for Europe of the Nations Group
• 7. Mr CUSHNAHAN, John Walls Group of the European People's Party (Christian Democrats) and European Democrats
• 8. Mr DE ROSSA, Proinsias Group of the Party of European Socialists
• 9. Mrs DOYLE, Avril Group of the European People's Party (Christian Democrats) and European Democrats
• 10. Mr FITZSIMONS, James (Jim) Union for Europe of the Nations Group
• 11. Mr HYLAND, Liam Union for Europe of the Nations Group
• 12. Mr McCARTIN, John Joseph Group of the European People's Party (Christian Democrats) and European Democrats
• 13. Mrs McKENNA, Patricia Group of the Greens/European Free Alliance
• 14. Mr O' NEACHTAIN, Sean Union for Europe of the Nations Group
• 15. Mrs SCALLON, Dana Rosemary Group of the European People's Party (Christian Democrats) and European Democrats

The BSA wrote a European law? What was it

I believe he was talking about the draft european software patent directive, not actually a law.

If implemented it would blow the doors wide open for software patents in the EU. It would quite possibly be WORSE then the US system. Current EU law FORBIDS software patents, though about 20,000 likely invalid software patents have been issued in the EU. Of course there's tons of disinformation being pushed that this directive is supposed to block patents on pure software, but in top BSA/Microsoft fashion it has the exact opposite effect they claim it has. Many parts of the text are worded in an extremely deceptive manner.

It's hard to tell which of the politicians promoting it are flat out lying, and which have been deceived.

Some EU committee did a survey of programmers and got something like 91% or 94% opposed. And this directive is supposedly so that programmers can get the benefit of patent protection LOL! They want to be protected from this directive!

I happen to have a link handy on an analysis of it, and it proposes amendments that would actually correct the directive so that it does what it claims, deny software patents.

In case anyone doubts me, and actualy bought the party line line that it blocks "pure software", here's the deal:

The directive mandates that a patent application must be evaluated as a unified whole. The patent descibes a purely software "invention" and states that it must run on an ordinary computer.

The software invention is not patentable because software is not patentable.
The ordinary computer it runs on is not patentable because there is nothing novel about it.

But the patent must be evaluated as a unified whole. The unified whole now contains a patentable "invention" in the software and it contains patentable subject matter in the ordinary computer. The two halves cannot be rejected seperately, therefore the patent must be granted.

While they were at it they played games to make it easier to get trivial and obcious patents, and they set it up so that only the copyright exemptions for interoperability apply. Without a patent interoperability exemption any company can abuse patents to lock out competitors from ever interoperating. It's expecially bad for opensource, but it seriously screws over any small to midsized closed source company as well.

-

directive on software patents ... MSWord's "Author" field suggests that it comes straight from the BSA's director of public policy

The directive was secretly written by the BSA (well, it was supposed to be secret LOL). The BSA is rabidly pro-software patents. They want software patentability as broad as possible and the standards to be as low as possible. The 800lb gorrila in the BSA's membership is Microsoft, with IBM being second.

I hope that's enough for you to believe that there's intentionally missleading information coming out about this directive. If that's not good enough, the only way to cut through the contradictory claims is to actually look at the text of the directive itself. It's tough reading unless you get an analysis with it. It's a huge reading project, but you can see for yourself right here. It goes into great detail explaining how the directive actually mandates almost the broadest possible patentability of even trivial "inventions" purely contained in software. It's long, but very informative. The directive is far worse than even I thought.

there is no reason why a non-physical part of an invention should not be covered by patent if it is really part of that invention.

The entire physical part is the computer sitting in front of you right now. According to the directive your PC is a required part of the invention. The actual "invention" is purely in the software.

"Pure software" means a printout of a program.

software that is a unified whole with a piece of hardware in a patented object

Exactly! This directive DEMANDS that they be evaluated as a unified whole:

A software "invention" alone is not patentable.
An ordinary computer alone is not patentable.

When evaluating this patent claim they must be considered as a unified whole. You now have a patentable claim in the software and you have patentable subject matter in the ordinary hardware. The two portions CANNOT be rejected seperately. How's that for evil and underhanded? The patent must therefore be granted.

you would not be able to patent an abacus

Sure you would. The abacus itself meets all of the qualifications of patentability. It's novel, non-obvious, and useful. I was saying you can't patent the software of how to add or take square roots on it, and that you can't rely on that software to fulfill any of the tests of whether the abacus is patentable.

The rules of patents and the rules of copyrights are different, and they are different for good reason. No matter how the patent rules work, the software involved is always covered by copyright. Any patentability of software means it's double-covered with both copyright AND patent. There is absolutely no reason for double coverage. It's broken and can do evil things like making interoperability impossible.

if there is no physical part to your invention, that it will probably fall under the limitations on what is patentable

LOL. That's totally circular. It's ok to patent it because it doesn't fall under one of the limitations, but the reason it doesn't fall under one of the limitations is because they are changing the limitations!

Nevertheless, you are not allowed (I assume at least) to steal electricity.

Private property. I am not allowed to tap into the power company's distribution wires. They just happen to use an interesting method of determining how much they charge for the right to connect to their property :)

Same reason cable TV is a valid business, but satallite TV isn't. I have to pay the cable company for the right to connect to their wires, and copyright prevents me from distributing the signal further. Only peopel who pay can watch. However satallite TV broadcasts a free encrypted signal to everyone. If it is illegal to decrypt that signal then they have to put me in prison if I were to decrypt it mentally. So either I can literally go to prison for thinking, or everyone can watch satallite TV for free.

-

No, the 'novelty in technical contribution' criterion is meaningless in practice. Take a look at software patents already granted by the European Patent Office. These have been granted despite the fact that the current patent laws explicitly exclude programs for computers! The EPO has developed a spurious doctrine where a program may be counted as 'a computer program not as such', and thus patentable. Anyway, the current argument is about whether to amend the law so that the patents already granted by the EPO become enforceable. Given the EPO's past history of interpreting any rule as widely as possible, to allow as much as possible to be patentable, I don't have much faith in 'real technical contributions'.

What's needed is a simple, obvious rule that even the patent office can interpret correctly. The current European exclusion on 'programs for computers' is such a rule; the EPO has nonetheless managed to get around it by classifying some computer programs as not being 'computer programs as such' based on whether they have a 'technical contribution', but no court would accept such an argument, and it's courts that decide infringement. Rather than changing the law to match the patent office's warped interpretation, we should take the shocking step of asking the patent office to follow the law as written.

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>I don't think that computer programs are patentable (at present) in the
>EU. In answer to your question,

It was more of a rhetorical question :-).

>no I don't think that courts will agree with the position taken by the EPO.

I was discussing this on a mailing list
<http://liberte.aful.org/mailman/listinfo/pa tents> and one person
responded:

>Firstly, whatever theory may say, the national courts have been very
>happy to let the EPO Boards of Appeal make the running. The reason is
>quite simple: few judges in the higher courts understand patents and
>none understand software. In England, for example, there is no-one in
>the House of Lords and the only Court of Appeal judge with patent
>experience is Lord Aldous, aka Willie Aldous. In the High Court, Hugh
>Laddie is a chemist; I don't know anything about Jacob, Pumphrey or
>Neuburger, but none of them have afaik shown interest in the software
>problem; at least, they haven't written on the subject. In Germany the
>BGH is made up of pure lawyers who in my experience hate and fear
>technical stuff.
>
>This is reflected in the way the House of Lords has talked up the
>Boards of Appeal, referring to them as "judges in all but name". In
>other words, the highest court in England sees the Boards of Appeal as
>a court. In practice too, the English - and German - courts with the
>exception of the occasionally perverse and consistently overruled 17th
>Senate of the Federal Patent Court have sought to harmonise with BoA
>decisions. The only disagreements I'm aware of in England arise from
>older precedent, which the Patent Office feels bound by, in particular
>Gale's Application.

So he seems to think that the national courts, the Lords in particular,
will agree with the EPO's ruling because that's what they always do. I
suggested that while the national courts are happy with the EPO's
decisions made _within_ its remit (the EPC), they may not be so
accommodating if the EPO seeks to extend its powers outside those
granted by the Convention. But since there have been no cases so far
it's all just speculation.

I wanted to point you to the archives of the mailing list but the recent
messages have not yet appeared on the web page. I haven't mentioned you
by name or email address but if you want I could cc you on messages I
send, then you can join in the discussion. But you probably

In short: then it should not be done.

On http://live.guadec.org/audiovideo.html I can read:

Live 150kps Real Video Stream from Burke Theatre

I'm sorry, but I feel it is extremely awkward that a project aimed at making people use a Free Software desktop promotes using non-free software.
I can understand the motivation and how it may have been well intended, but this should not continue.
At least some formats have Free Software that can interpretate them, even if they are patent encumbered in some unfortunate countries like the USA (let's hope we can avoid software patents in Europe: http://swpat.ffii.org - hurry because we have little time and we've just lost one of the battles with the JURI voting).

I know Ogg Theora isn't ready yet, but it works quite well (although maybe not yet for streaming). I've very recently made some tests and hope to publish some Ogg Theora videos soon of Stallman's speech in Portugal on the 9th of June, accompanied with the player and encoder apps (built statically) since the format is not yet finalized and as it may chage, the code used to code and decode those videos must be preserved.

Any chance we can send these guys after SCO? After all ... I checked out their website and they've got boatloads of hyperlinks.
The lawsuit is about as reasonable....

of course Linus is going to have little regard for software patents. He's a European and that's one bit of stupidity we have yet to import from the US (please God we never do).

Emphasis on the "yet".
Have a look at this European Commission proposal to make all useful ideas patentable

* From: Hartmut Pilch <phm@xxxxxx>
* To: news@xxxxxxxx, <patents@xxxxxxxx>
* Subject: McCarthy wins in JURI
* Date: Tue, 17 Jun 2003 13:04:55 +0200 (CEST)

The JURI vote was delayed by 2 hours. Our little conference was thereby made impossible. Around 13.00 the voting was pushed through in 20 minutes, and McCarthy won a majority on all points, which means

- introduction of program claims
- refusal of interoperability privilege (ITRE 15)
- refusal of definition of "technical"
- what is new needn't be technical and what is technical needn't be new
- no need for a technical solution, only problem must be technical
- additional rationales for patentability (e.g. need to make money from licensing in view of low-cost economies)

etc.

McCarthy was subsequently surrounded by congratulating journalists and explained them that she only wanted to harmonise the status quo, wasn't legalising software patents, was against US-style patenting of algorithms and business methods, would not hurt opensource software etc. Some of these journalists also had a chance to meet Erik and Alex who watched the session.

A collection of statements and documentation about the JURI vote is found at

http://swpat.ffii.org/news/03/juri0617/

--
Hartmut Pilch, FFII & Eurolinux Alliance tel. +49-89-18979927
Protecting Innovation against Patent Inflation http://swpat.ffii.org/
145,000 votes 400 firms against software patents http://noepatents.org/

This article is a lie of the Patent lobby. Ask the free software foundation Europe or FFII to learn more about these persons.

FFFII has the real story. Nice Quotes from HÃ¥kon Wium Lie, CTO of Opera Inc, Richard Clark, CEO of Elysium Co Ldt and chief editor for the JPEG standardisation committee, Bernd Runge of SAP AG, Bernhard Kaindl of SuSE GmbH, Dr. Karl-Friedrich Lenz, professor of Public Law and European Law, Aoyama Gakuin Daigaku, Tokyo, Jozef Halbersztadt, patent examiner at the Polish Patent Office and others.

Yes, I know people who met tonight for that very purpose. I was too far away, and anyway, I didn't feel like.

After all, when patents claiming all automatized medical diagnosis got through the old system (when illegal), how would you defend yourself against lawsuits now that every idea somehow involving a computer is explicitly patentable?

Not to mention that all commercial developers will have to pay IBM et.al. to avoid million-dollar-lawsuits. No wonder that innovation dwindles

Yes, I know people who met tonight for that very purpose. I was too far away, and anyway, I didn't feel like.

After all, when patents claiming all automatized medical diagnosis got through the old system (when illegal), how would you defend yourself against lawsuits now that every idea somehow involving a computer is explicitly patentable?

Not to mention that all commercial developers will have to pay IBM et.al. to avoid million-dollar-lawsuits. No wonder that innovation dwindles

Yes, I know people who met tonight for that very purpose. I was too far away, and anyway, I didn't feel like.

After all, when patents claiming all automatized medical diagnosis got through the old system (when illegal), how would you defend yourself against lawsuits now that every idea somehow involving a computer is explicitly patentable?

Not to mention that all commercial developers will have to pay IBM et.al. to avoid million-dollar-lawsuits. No wonder that innovation dwindles

The European Commission has proposed to override the current clear and uniform European patentability rules (Art 52 EPC: "mathematical methods, schemes and rules for mental activity, methods of doing business and programs for computers are not patentable inventions") and replace them by a confusing set of nationally implementable rules which authorise patenting of algorithms and business methods, as it has been practised at the European Patent Office (EPO), openly since 1998 and more or less covertly since 1986.

The "European Parliament committee" cited in the article is the European Parliament's Commission on Legal Affairs and the Internal Market (JURI). Some members of this comittee submitted amendments to the European Commission's software patent directive proposal. While some Members of the European Parliament (MEPs) are asking to bring the directive in line with Art 52 EPC so as to clearly restate that programs for computers are not patentable inventions, another group of MEPs is endorsing the EPO's recent practice of unlimited patentability, shrouded in more or less euphemistic wordings.

What happened Tuesday is the vote of some pro-software-patenting amendements by the JURI. Theese amendments will now be presented to the plenary of the European Perliament for decision during the first week of either july or september.

It's definitely VERY BAD news.

This site summarizes the situation and the efforts from all around Europe to fight software patenting.

The Yahoo story and the slashdot blurb have both been (intentionally) misled. Under this directive anything "technical" can be patented. Programs running on a computer are technical. Business methods implemented "with a computer network" are technical.

In the future, european businesses will compete, not on programming, but on paying patent lawyers. Remember: just because you wrote a program yourself doesn't mean you'll be allowed to distribute it. The result? Punishing innovation.

The Yahoo story and the slashdot blurb have both been (intentionally) misled. Under this directive anything "technical" can be patented. Programs running on a computer are technical. Business methods implemented "with a computer network" are technical.

In the future, european businesses will compete, not on programming, but on paying patent lawyers. Remember: just because you wrote a program yourself doesn't mean you'll be allowed to distribute it. The result? Punishing innovation.

Please, may be some UK citizen could send to Mrs Arlene McCARTHY few words to tell her what they think.

Find more information about CEC & BSA at CEC & BSA 2002-02-20: proposal to make all useful ideas patentable

And information about Arlene McCARTHY including e-mail address.

I read your post. With all due respect, an honest disagreement over patent policy is hardly FUD.

The argument you make is viable in markets that do not produce as much novel technology as they consumer.

I don't think that traditional patents are plain bad. The problem is that software is entirely different. If you make a machine, in general it's covered by maybe one or two patents, so licensing is perfectly possible. However, software patents cover such small and sometimes even basic components, that a single program may infringe on hundreds of patents. You just cannot sell such a program if you need a license for all of those patents, unless the owners allow you to get a license for 0.0001% of the profits or so.

Small companies can do very little against such big companies if they per chance would be able to get a software patent, unless they don't produce any software themselves. Otherwise, if they would try to get some money out of e.g. IBM, the latter will probably tell the small company that they infringe on 200 patents of their, but since they are such nice guys, they'll propose a cross-licensing deal. So all this encourages is holdiongs with a ton of patents they don't intend on using themselves, but for extorting money from other companies.

Yes, it really boils down to extortion in some cases. IBM actively seeks out companies which have new technology that interests them and then uses their patent portfolio to force the other company to give them access to that technology as part of a cross licensing deal (look here).

The question is whether or not you are innovative. If you are making technology, and your nation gives no protection, then you -- in your local market -- are subject to arbitrary freeloading.

Besides, in software, having a novel idea is quite easy (just look at the dozens of stalled sourceforge projects). Implementing, polishing and finishing it however, is something completely different and you cannot copy that. It's there that most software distinguishes itself from other software, not in which algorithms and datastructures it uses and in what its purpose is.

Man, you really need to know more before you form an opinion. This whole software patent directive business strongly exhibits misdirection: things are not advertised as they really are. You need not look any further than the text of the proposed directive itself: it quotes a couple of economic studies in support of its pro-patent stance. Well, I saw with my own eyes the authors of two of those studies say that the directive very purposefully misquotes and omits significant parts to give that impression of support.

This misdirection is evident in Arlene McCarthy's article, too. Her position seems reasonable? Whatever. But ever noticed how she never even brought up the portfolio effect (one of the biggest contrarian arguments), that is, that through their large patent portfolios, large companies will always be able to force the small guy to license his patent to them. Thus, patents do not provide any advantage to large companies against other large companies, but they are a useful weapon against the small guy.

Also: If you think she has made a misrepresntation, by all means state it. Here you go (for example, mind you):

Numerous people from small to medium-sized enterprises have written to me in support of my proposal.

Show me those letters.

Perhaps software patents are formally not allowed, but in practice they do exist...

Arlene sounds pretty reasonable. She isn't. With one hand she writes articles like this one, with the other one she is relentlessly pushing the patent inflation damaging innovation and competition. The European Patent Office has for many years granted illegal patents on software and business methods, and now they want EU to bless this practice. (Never mind hurting innovation)

Let me point out a couple of points:

First, the EU directive is not proposing to patent all software, it is limited to genuine inventions.

Then what about an "invention" like converting Win95 filenames to WinNT filenames?

To stop the drift towards the US practice of patenting business methods.

Well, if you had been to this meeting you could have learned how to patent business methods under Arlenes proposal.

this directive will not have any adverse effects on open source software development. Even in the US [Linux] declares a 50% growth

And how about the whole GIF/Unisys/LZW debacle? No "adverse effects"?

From medical inventions to household appliances[...]inventions involving software are increasingly a fact of life.

Yes, and that's why we should let "innovators" blanket patent obvious ideas like using computers for medical diagnosis

This directive will provide legal certainty for European software inventors.

Yes, you can be sure that unless you can take on IBM in court, you will have to pay up to develop your idea.

Arlene sounds pretty reasonable. She isn't. With one hand she writes articles like this one, with the other one she is relentlessly pushing the patent inflation damaging innovation and competition. The European Patent Office has for many years granted illegal patents on software and business methods, and now they want EU to bless this practice. (Never mind hurting innovation)

Let me point out a couple of points:

First, the EU directive is not proposing to patent all software, it is limited to genuine inventions.

Then what about an "invention" like converting Win95 filenames to WinNT filenames?

To stop the drift towards the US practice of patenting business methods.

Well, if you had been to this meeting you could have learned how to patent business methods under Arlenes proposal.

this directive will not have any adverse effects on open source software development. Even in the US [Linux] declares a 50% growth

And how about the whole GIF/Unisys/LZW debacle? No "adverse effects"?

From medical inventions to household appliances[...]inventions involving software are increasingly a fact of life.

Yes, and that's why we should let "innovators" blanket patent obvious ideas like using computers for medical diagnosis

This directive will provide legal certainty for European software inventors.

Yes, you can be sure that unless you can take on IBM in court, you will have to pay up to develop your idea.

Arlene sounds pretty reasonable. She isn't. With one hand she writes articles like this one, with the other one she is relentlessly pushing the patent inflation damaging innovation and competition. The European Patent Office has for many years granted illegal patents on software and business methods, and now they want EU to bless this practice. (Never mind hurting innovation)

Let me point out a couple of points:

First, the EU directive is not proposing to patent all software, it is limited to genuine inventions.

Then what about an "invention" like converting Win95 filenames to WinNT filenames?

To stop the drift towards the US practice of patenting business methods.

Well, if you had been to this meeting you could have learned how to patent business methods under Arlenes proposal.

this directive will not have any adverse effects on open source software development. Even in the US [Linux] declares a 50% growth

And how about the whole GIF/Unisys/LZW debacle? No "adverse effects"?

From medical inventions to household appliances[...]inventions involving software are increasingly a fact of life.

Yes, and that's why we should let "innovators" blanket patent obvious ideas like using computers for medical diagnosis

This directive will provide legal certainty for European software inventors.

Yes, you can be sure that unless you can take on IBM in court, you will have to pay up to develop your idea.

Anyone know if the lack of a 'pause live radio' feature is due to something like the Pause Technologies patent for TV pausing?

Patent system is different in the US to Europe. For the moment you can't patent software in europe.

Having had a quick scan of the patent it is fairly clear that M$ is not trying to patent interacive interactive. it looks like they are patenting vod playlists with a preview function. Which to be honest I have no idea if it has been done before or not.

After all, someones once patented a XOR cursor routine (patent #4,197,590)

You may be amused, or horrified, by some of these software patent examples. It appears that Europe is not really that much better, something the Patent Horror Gallery explicates.

So Be Aware: If my karma drops below good, I may issue a patent for a system that karmafies people and then sue the hell out of OSDN ;-)

The EU commission (lobbied by patent lawyers and big corps) are trying to expand patentability dramatically. Public protest has delayed the process, which is now entering the final phase, where amendments will be voted upon. Next election is june 2004
You still have time to write your MEP!

More information

Last I heard, IPIX was trying to bully Dersch off the 'Net - he's back up now? Anybody have info?

Anyway, he has a page on Correcting Barrel Distortion.

Not exactly

There are already several useful amendments already down which would (unlike McCarthy) would place real limits on software patenting.

For an introduction to some of the amendments, see:
http://swpat.ffii.org/papers/eubsa-swpat0202/ipat0 304/index.en.html

There is also a page (still under development) which analyses all the amendments placed so far:
http://swpat.ffii.org/papers/eubsa-swpat0202/juri0 304/index.en.html

McCarthy cannot stop these amendments being voted on (now expected to be the 16th June), and several have already secured majorities in votes on other, advisory committees.

What I think the IDG article means is that she would not agree to personally recommend any new "compromise amendments" at that meeting, if they do not endorse software patents.

It is notable that while McCarthy talks up the strictness of her proposals, they effectively amount to unlimited software patentability; as well as lower standards, they would impose the EPO's bend-over-backwards flexible approach on the national court systems of countries like the UK, France and Germany, which have all previously been much more reluctant and limited in upholding software patents.

Not exactly

There are already several useful amendments already down which would (unlike McCarthy) would place real limits on software patenting.

For an introduction to some of the amendments, see:
http://swpat.ffii.org/papers/eubsa-swpat0202/ipat0 304/index.en.html

There is also a page (still under development) which analyses all the amendments placed so far:
http://swpat.ffii.org/papers/eubsa-swpat0202/juri0 304/index.en.html

McCarthy cannot stop these amendments being voted on (now expected to be the 16th June), and several have already secured majorities in votes on other, advisory committees.

What I think the IDG article means is that she would not agree to personally recommend any new "compromise amendments" at that meeting, if they do not endorse software patents.

It is notable that while McCarthy talks up the strictness of her proposals, they effectively amount to unlimited software patentability; as well as lower standards, they would impose the EPO's bend-over-backwards flexible approach on the national court systems of countries like the UK, France and Germany, which have all previously been much more reluctant and limited in upholding software patents.

You don't have to copy anything to infringe on a patent. I can infringe on the Unisys LZW patent by writing my own LZW code. All I have to do is use (whether by copying or by innocently reinventing) Terry Welch's algorithm during the next month in the USA.

Similarly, if Linus introduced into the kernel either his own code or code donated by someone else (IBM) that implements any algorithms for which SCO holds patents, even if the code in question comprises completely original implementations of those algorithms, then by redistributing the kernel without a license from SCO, Linus is infringing on SCO's patents.

The rule in Europe right now is good, there's no software patents, there's no risk at all for individuals, SMEs, and open source in general.

Wrong! Even though the rules say that software patents are not allowed, the European Patent Office will happily grant them as long as they describe a computer running the software rather than just the software (which of course makes no difference). It is not even necessary to describe how the software works; an outline of what the software does appears to be sufficient so long as it's couched in the proper terms. What's happening now is an attempt to legitimise the EPO's policy.

See the European Software Patent Horror Gallery for some examples of existing European software patents.

One more question, you say that "His status of "open source rep" seems only to be of concern to Bruce who has many times asserted himself as a representative of open source."

Clearly, there is no such title (I never claimed there was), does it bother you that ffii.org claims there is? You stated that it is only of concern to Bruce because of his belief that his is one. Do you think it could potentially concern other people without Bruce's political agenda?

In Bruce's article (and the links from the articles) you can see that Bruce was almost directly quoting one of his sources used for his article regarding the OSR title (that of course doesn't exist, I understand this, I was never unclear on that).

In the following quote (a link from Bruce's article that he calls one of his sources): the people who publish the article (ffii.org) call Mr. Taylor, and I quote:

"In a "Joint Statement of the Industry", directed to the Members of the European Parliament (MEPs), the presidents of various industry associations, including Graham Taylor from the "Open Forum Europe" as a representative of the Linux/Opensource world, asks the legislators to ensure..." Source

After reading Bruce's article and the material he used as his source, I can only conclude that Bruce was bringing to the attention of people who read his web site that someone is being represented as an OSR (the people representing Mr. Taylor as an OSR are ffii.org)!

Since there is no OSR, I think Bruce feels this is false (he is entitled to, after all, it is an article on HIS personal web site (where he represents his opinions, if you don't agree with them, no one is forcing you to read them, right?), not some sort of press release to the world. THAT was done on /. by the user who posted this story (/. user Onno and the Editor who posted the article, CmdrTaco)).

Regarding "He was quoting Bruce directly (hence the quotes). His opening sentence calls Mr Taylor either a misguided or "False" open source representative." he was not directly quoting Bruce. What I was referring to is that the title of the /. article places the word "False" in quotation marks while it is not that way on Bruce's web site (he (/. user Onno) altered the structure by adding quotation marks to embellish his point of the word "False".)

Hence, as I said:

"Incidentally, the article to /. was not posted by Bruce. The person who posted it chose to accentuate the "False" in quotation marks... Wouldn't that person be the one embellishing their point?"

According to the European Patent Convention (1973), "computer programs ... as such" were to be specifically excluded from patentability. However, according to the latest EPO guidelines software innovations are now patentable, if they have a 'technical character', beyond just being run on a computer:

A further technical effect which lends technical character to a computer program may be found e.g. in the control of an industrial process or in processing data which represent physical entities or in the internal functioning of the computer itself or its interfaces under the influence of the program and could, for example, affect the efficiency or security of a process, the management of computer resources required or the rate of data transfer in a communication link.

Just about any kind of software design or process is therefore now apparently deemed patentable by the EPO, if it can be defended as having any kind of rational justification or identifiable practical usefulness. (Note that the exact nature of "technical character" is never defined. Apparently it's something you just know when you see it.)

The width of EPO patentability is borne out by considering a selection of some of the patents that the EPO has granted in recent years:

http://swpat.ffii.org/patents/txt/ep/index.en.html #pubjar

So, when in the letter Mr Taylor calls on MEPs to support the McCarthy draft proposals, because they "confirm the current scope of patentability" and would be "integrating the long-standing approach of the European Patent Office", this is effectively a call to confirm almost unlimited software patentability.

It would be much better if, when the JURI committee meets on May 22nd to vote, they choose the CULT amendments, or the ITRE amendments, or those proposed by some of the Greens and Socialists, rather than the ones this letter is calling for.

For example, CULT recommended that only systems involving "the use of natural forces to control physical effects beyond the digital representation of information" should be patentable - essentially the caselaw in Germany and many other European states in the 1970s and 1980s.

ITRE proposed that "inventions involving computer programs which implement business, mathematical or other methods, which inventions do not produce any technical effects beyond the manipulation and representation of information within the computer-system or network, shall not be patentable".

Also, that "the production, handling, processing, distribution and publication of information, in whatever form, can never constituate direct or indirect infringement of a patent, even when a technical apparatus is used for that purpose."

In contrast the amendments drafted for JURI by Arlene McCarthy, which the letter recommends, are much looser, in many places not well drafted at all, and contain none of these clearly defined restrictions.

The letter in fact is even worse, because unlike even Arlene McCarthy it supports "program claims" -- ie making the publication of source code on a disk or a website a primary patent violation (Compare that under ITRE's amendments such a publication would be free speech to be protected, not even an indirect violation).

There is much much more information on the FFII website, including

• their critique of the letter.
• their analysis of the McCarthy draft amendments for JURI
• their analysis of the CULT report and proposed amendments
• their analysis of the ITRE report and proposed amendments

Also worth reading is this open letter from 20 distinguished European professors of Computer Science about why software patents would be a bad thing:

http://www.cs.chalmers.se/~bengt/petition.pdf

It would be much better if, when the JURI committee meets on May 22nd to vote, they choose the CULT amendments, or the ITRE amendments, or those proposed by some of the Greens and Socialists, rather than the ones this letter is calling for.

For example, CULT recommended that only systems involving "the use of natural forces to control physical effects beyond the digital representation of information" should be patentable - essentially the caselaw in Germany and many other European states in the 1970s and 1980s.

ITRE proposed that "inventions involving computer programs which implement business, mathematical or other methods, which inventions do not produce any technical effects beyond the manipulation and representation of information within the computer-system or network, shall not be patentable".

Also, that "the production, handling, processing, distribution and publication of information, in whatever form, can never constituate direct or indirect infringement of a patent, even when a technical apparatus is used for that purpose."

In contrast the amendments drafted for JURI by Arlene McCarthy, which the letter recommends, are much looser, in many places not well drafted at all, and contain none of these clearly defined restrictions.

The letter in fact is even worse, because unlike even Arlene McCarthy it supports "program claims" -- ie making the publication of source code on a disk or a website a primary patent violation (Compare that under ITRE's amendments such a publication would be free speech to be protected, not even an indirect violation).

There is much much more information on the FFII website, including

• their critique of the letter.
• their analysis of the McCarthy draft amendments for JURI
• their analysis of the CULT report and proposed amendments
• their analysis of the ITRE report and proposed amendments

Also worth reading is this open letter from 20 distinguished European professors of Computer Science about why software patents would be a bad thing:

http://www.cs.chalmers.se/~bengt/petition.pdf

It would be much better if, when the JURI committee meets on May 22nd to vote, they choose the CULT amendments, or the ITRE amendments, or those proposed by some of the Greens and Socialists, rather than the ones this letter is calling for.

For example, CULT recommended that only systems involving "the use of natural forces to control physical effects beyond the digital representation of information" should be patentable - essentially the caselaw in Germany and many other European states in the 1970s and 1980s.

ITRE proposed that "inventions involving computer programs which implement business, mathematical or other methods, which inventions do not produce any technical effects beyond the manipulation and representation of information within the computer-system or network, shall not be patentable".

Also, that "the production, handling, processing, distribution and publication of information, in whatever form, can never constituate direct or indirect infringement of a patent, even when a technical apparatus is used for that purpose."

In contrast the amendments drafted for JURI by Arlene McCarthy, which the letter recommends, are much looser, in many places not well drafted at all, and contain none of these clearly defined restrictions.

The letter in fact is even worse, because unlike even Arlene McCarthy it supports "program claims" -- ie making the publication of source code on a disk or a website a primary patent violation (Compare that under ITRE's amendments such a publication would be free speech to be protected, not even an indirect violation).

There is much much more information on the FFII website, including

• their critique of the letter.
• their analysis of the McCarthy draft amendments for JURI
• their analysis of the CULT report and proposed amendments
• their analysis of the ITRE report and proposed amendments

Also worth reading is this open letter from 20 distinguished European professors of Computer Science about why software patents would be a bad thing:

http://www.cs.chalmers.se/~bengt/petition.pdf

It would be much better if, when the JURI committee meets on May 22nd to vote, they choose the CULT amendments, or the ITRE amendments, or those proposed by some of the Greens and Socialists, rather than the ones this letter is calling for.

For example, CULT recommended that only systems involving "the use of natural forces to control physical effects beyond the digital representation of information" should be patentable - essentially the caselaw in Germany and many other European states in the 1970s and 1980s.

ITRE proposed that "inventions involving computer programs which implement business, mathematical or other methods, which inventions do not produce any technical effects beyond the manipulation and representation of information within the computer-system or network, shall not be patentable".

Also, that "the production, handling, processing, distribution and publication of information, in whatever form, can never constituate direct or indirect infringement of a patent, even when a technical apparatus is used for that purpose."

In contrast the amendments drafted for JURI by Arlene McCarthy, which the letter recommends, are much looser, in many places not well drafted at all, and contain none of these clearly defined restrictions.

The letter in fact is even worse, because unlike even Arlene McCarthy it supports "program claims" -- ie making the publication of source code on a disk or a website a primary patent violation (Compare that under ITRE's amendments such a publication would be free speech to be protected, not even an indirect violation).

There is much much more information on the FFII website, including

• their critique of the letter.
• their analysis of the McCarthy draft amendments for JURI
• their analysis of the CULT report and proposed amendments
• their analysis of the ITRE report and proposed amendments

Also worth reading is this open letter from 20 distinguished European professors of Computer Science about why software patents would be a bad thing:

http://www.cs.chalmers.se/~bengt/petition.pdf