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I do not disagree with you in your last 3 sentences. Other than that, I accept the fact that my social condition (that of a working, middle-class citizen, i.e. one vote) simply does not allow me to have that influence in communitary law-making.

As a 25 year old PhD student, together with a bunch of like-minded people that had no political clout or connections (many of which were students or PhD students), I managed to help block the EU software patents directive back in 2009. This directive had the full support of the European Commission, and initially also of the majority of the largest groups in the European Parliament (the Christian Democrats and the Socialists). Big IT companies (IBM, Microsoft, Nokia, ...) spent over 4 million euro on lobbying. And yet in the end (after 7 years of procedure) they all decided to go for cancelling the directive rather than risking it might get amended do something we may like and they might not.

For me, it started in a very silly way: I sent a mail to all Belgian MEPs, explaining them my view on the directive and on software patents. A week later, I got a call from an assistant of a number of MEPs telling me it was the first mail on the topic that made any sense to her, and asking me (a random student that just mailed them) how they should vote on the report that was being tabled the next week. I kind of panicked, told her I'd get back to her, looked on the Internet who could help me with that, ended up at the FFII and the rest is history.

Seriously, politicians and their aides are also also just people, and if you say something that makes sense, many of them will pay attention. There are of course always those who have made up their mind and won't care, but in my experience of 5 years of talking with them, I did not come to the conclusion that it's the majority of them. Not even close. Especially at the European level, where they are often happy that finally someone from the home country actually cares about what they're doing (as long as you're not sending template mails).

And yes, in the end it did cost lot of effort. But it is patently (hah!) false that there is nothing you can do influence or achieve at the EU level.

Democracy allows me this vote every now and then

That is just one part of democracy. It's an important one, but still just a part. A functional democracy requires way more effort than just voting every couple of years. And you can do it just as well as anyone else.

I do not disagree with you in your last 3 sentences. Other than that, I accept the fact that my social condition (that of a working, middle-class citizen, i.e. one vote) simply does not allow me to have that influence in communitary law-making.

As a 25 year old PhD student, together with a bunch of like-minded people that had no political clout or connections (many of which were students or PhD students), I managed to help block the EU software patents directive back in 2009. This directive had the full support of the European Commission, and initially also of the majority of the largest groups in the European Parliament (the Christian Democrats and the Socialists). Big IT companies (IBM, Microsoft, Nokia, ...) spent over 4 million euro on lobbying. And yet in the end (after 7 years of procedure) they all decided to go for cancelling the directive rather than risking it might get amended do something we may like and they might not.

For me, it started in a very silly way: I sent a mail to all Belgian MEPs, explaining them my view on the directive and on software patents. A week later, I got a call from an assistant of a number of MEPs telling me it was the first mail on the topic that made any sense to her, and asking me (a random student that just mailed them) how they should vote on the report that was being tabled the next week. I kind of panicked, told her I'd get back to her, looked on the Internet who could help me with that, ended up at the FFII and the rest is history.

Seriously, politicians and their aides are also also just people, and if you say something that makes sense, many of them will pay attention. There are of course always those who have made up their mind and won't care, but in my experience of 5 years of talking with them, I did not come to the conclusion that it's the majority of them. Not even close. Especially at the European level, where they are often happy that finally someone from the home country actually cares about what they're doing (as long as you're not sending template mails).

And yes, in the end it did cost lot of effort. But it is patently (hah!) false that there is nothing you can do influence or achieve at the EU level.

Democracy allows me this vote every now and then

That is just one part of democracy. It's an important one, but still just a part. A functional democracy requires way more effort than just voting every couple of years. And you can do it just as well as anyone else.

I'd also like to plug the FFII for anyone in Europe. They have a few MEPs among their members and have had some important successes. Less relevant in this particular issue, but they have a lot of overlap with the EFF in other places.

This should be clear and was adopted by Parliament.

Don't invest in lawyers to clean the shit, ignore particular patent cases, invest in legislative patent reforms and pressure your representatives. There is no point in seperating the wheat from the crap because it smells so bad.

I am with Richard Stallman and the FFII: Stop all the nonsensical software patent granting. All of them are a disgrace to professionals in the field, a hostile takeover from laywers and patent parasites.

>Actually, one of the most comprehensive studies on that topic [mises.org] (Fritz Machlup, An Economic Review of the Patent System) concluded more or less the opposite:

Really? You're citing a study from 1958??

Sure. It still often cited in academic works even today. You may have noticed I also cited other, more recent studies. Here's a couple more I collected during the EU software patents directive process.

More background noise...

Yes, la la la la I can't hear you really works well...

Seriously, how many people posting here even read Kappos's original remarks (see link above)?

Might also want to read the posting below from someone who was actually there.

On the other hand, the Patent system works well when viewed in its historical context. They have been a net benefit for innovation.

Actually, one of the most comprehensive studies on that topic (Fritz Machlup, An Economic Review of the Patent System) concluded more or less the opposite:

If one does not know whether a system "as a whole" (in contrast to certain features of it) is good or bad, the safest "policy conclusion" is to "muddle through" - either with it, if one has long lived with it, or without it, if one has lived without it. If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it. This last statement refers to a country such as the United States of America - not to a small country and not to a predominantly nonindustrial country, where a different weight of argument might well suggest another conclusion.

Similarly, the FTC Innovation report from 2003 was also far from unequivocally positive about patents, especially in the hardware/software fields. Or Jim Bessen's research, as presented (twice) at an FFII conference in 2004.

For example, there are many fewer patents lawsuits regarding Smart Phones than there were in the time the original telephone was invented.

That does not exemplify how patents have supposedly been a net benefit for innovation. Additionally, you are wrongly paraphrasing the article you refer to below. It only says that nowadays, per filed patent there are fewer lawsuits than there were in the days of the fixed telephone. From that it concludes that there is no problem with the volume of patent lawsuits.

I would argue that the reason for this is that patents are used in a very different way today compared to how they were used back then (there were much less large companies back then amassing patent war chests just for defensive purposes). Arguably, the standards for patentability were also higher back then, which means that actually going to court rather than only looking for the players you can convince to settle out of course was a much less risky business.

Here is a god article: http://www.forbes.com/sites/forbesleadershipforum/2012/02/09/no-the-patent-system-is-not-broken/2/

While I appreciate that shooting the messenger by itself is not a very strong argument, that's an opinion piece by "the vice president and head of strategic acquisitions at Intellectual Ventures". That's patent troll central. Suing companies, or threatening to sue them, based on all kinds of patents is their bread and butter.

Moving on to substance, he's most definitely wrong when he claims that "Every major technological and industrial breakthrough in U.S. history [..] has been accompanied by exactly the same surge in patenting, patent trading, and patent litigation that we see today in the smartphone business". Do you remember the massive patent wars from the eighties and nineties that came with the personal computer revolution? No? Me neither. There were a few lawsuits (e.g. Stac vs Microsoft), but there most definitely was no surge like what we see today.

What we need is general legal reform so that disputes can be decided simply and inexpensively without Lawyers getting all the goodies.

On the other hand, the Patent system works well when viewed in its historical context. They have been a net benefit for innovation.

Actually, one of the most comprehensive studies on that topic (Fritz Machlup, An Economic Review of the Patent System) concluded more or less the opposite:

If one does not know whether a system "as a whole" (in contrast to certain features of it) is good or bad, the safest "policy conclusion" is to "muddle through" - either with it, if one has long lived with it, or without it, if one has lived without it. If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it. This last statement refers to a country such as the United States of America - not to a small country and not to a predominantly nonindustrial country, where a different weight of argument might well suggest another conclusion.

Similarly, the FTC Innovation report from 2003 was also far from unequivocally positive about patents, especially in the hardware/software fields. Or Jim Bessen's research, as presented (twice) at an FFII conference in 2004.

For example, there are many fewer patents lawsuits regarding Smart Phones than there were in the time the original telephone was invented.

That does not exemplify how patents have supposedly been a net benefit for innovation. Additionally, you are wrongly paraphrasing the article you refer to below. It only says that nowadays, per filed patent there are fewer lawsuits than there were in the days of the fixed telephone. From that it concludes that there is no problem with the volume of patent lawsuits.

I would argue that the reason for this is that patents are used in a very different way today compared to how they were used back then (there were much less large companies back then amassing patent war chests just for defensive purposes). Arguably, the standards for patentability were also higher back then, which means that actually going to court rather than only looking for the players you can convince to settle out of course was a much less risky business.

Here is a god article: http://www.forbes.com/sites/forbesleadershipforum/2012/02/09/no-the-patent-system-is-not-broken/2/

While I appreciate that shooting the messenger by itself is not a very strong argument, that's an opinion piece by "the vice president and head of strategic acquisitions at Intellectual Ventures". That's patent troll central. Suing companies, or threatening to sue them, based on all kinds of patents is their bread and butter.

Moving on to substance, he's most definitely wrong when he claims that "Every major technological and industrial breakthrough in U.S. history [..] has been accompanied by exactly the same surge in patenting, patent trading, and patent litigation that we see today in the smartphone business". Do you remember the massive patent wars from the eighties and nineties that came with the personal computer revolution? No? Me neither. There were a few lawsuits (e.g. Stac vs Microsoft), but there most definitely was no surge like what we see today.

What we need is general legal reform so that disputes can be decided simply and inexpensively without Lawyers getting all the goodies.

On the other hand, the Patent system works well when viewed in its historical context. They have been a net benefit for innovation.

Actually, one of the most comprehensive studies on that topic (Fritz Machlup, An Economic Review of the Patent System) concluded more or less the opposite:

If one does not know whether a system "as a whole" (in contrast to certain features of it) is good or bad, the safest "policy conclusion" is to "muddle through" - either with it, if one has long lived with it, or without it, if one has lived without it. If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it. This last statement refers to a country such as the United States of America - not to a small country and not to a predominantly nonindustrial country, where a different weight of argument might well suggest another conclusion.

Similarly, the FTC Innovation report from 2003 was also far from unequivocally positive about patents, especially in the hardware/software fields. Or Jim Bessen's research, as presented (twice) at an FFII conference in 2004.

For example, there are many fewer patents lawsuits regarding Smart Phones than there were in the time the original telephone was invented.

That does not exemplify how patents have supposedly been a net benefit for innovation. Additionally, you are wrongly paraphrasing the article you refer to below. It only says that nowadays, per filed patent there are fewer lawsuits than there were in the days of the fixed telephone. From that it concludes that there is no problem with the volume of patent lawsuits.

I would argue that the reason for this is that patents are used in a very different way today compared to how they were used back then (there were much less large companies back then amassing patent war chests just for defensive purposes). Arguably, the standards for patentability were also higher back then, which means that actually going to court rather than only looking for the players you can convince to settle out of course was a much less risky business.

Here is a god article: http://www.forbes.com/sites/forbesleadershipforum/2012/02/09/no-the-patent-system-is-not-broken/2/

While I appreciate that shooting the messenger by itself is not a very strong argument, that's an opinion piece by "the vice president and head of strategic acquisitions at Intellectual Ventures". That's patent troll central. Suing companies, or threatening to sue them, based on all kinds of patents is their bread and butter.

Moving on to substance, he's most definitely wrong when he claims that "Every major technological and industrial breakthrough in U.S. history [..] has been accompanied by exactly the same surge in patenting, patent trading, and patent litigation that we see today in the smartphone business". Do you remember the massive patent wars from the eighties and nineties that came with the personal computer revolution? No? Me neither. There were a few lawsuits (e.g. Stac vs Microsoft), but there most definitely was no surge like what we see today.

What we need is general legal reform so that disputes can be decided simply and inexpensively without Lawyers getting all the goodies.

Well, donate to the FFII then. You could also license the patents and fund the patent industry.

I think companies which did not support software patent reformists and open standards deserve to suffer.

There are many organisations already working on behalf of ordinary people in cases such as this...the summary already has highlighted one such in the most excellent EFF but there are a number of others who are charitable donation funded and the like so negating your belief that huge wealth is needed to have voices on our side in this, and other, conflicts with the corporations who seek to enrich themselves by removal of our freedoms and liberties. I'll offer a small selection of such organisations below: https://www.eff.org/ http://ffii.org/ http://www.publicknowledge.org/ http://keionline.org/ http://infojustice.org/category/trade-agreements/ http://www.article19.org/ http://www.openrightsgroup.org/ http://www.edri.org/ http://www.michaelgeist.ca/ The last link is to Professor Michael Geist a prominent a noteworthy intellectual and activist in the field. All the above worked diligently to stop ACTA.

The weirdest thing for me is that these patents wars are also fought in Europe, where software patents aren't recognized.

National patent offices have different rules, but the European Patent Convention prohibits patenting software "as such" - the wording is very vague, and very trivial software patents have been issued. However, their enforeability remains quite uncertain and depends on the nation/court.

The patent system was used by the King of England to reward his friends with monopolies

And so the founders included it in the constitution, because they were total fans of the King of England and his was of doing things.

Powerful people helping powerful friends is of all times. And e.g. Thomas Jefferson wasn't exactly a big fan of the concept of patents initially. That changed somewhat later on, but even then he never saw it as "little vs big guy" but rather as "help the interest of society".

> I mean, just look at the arguments of patent system fans. Half the time they'll say
> > Patents are required, because otherwise everyone will keep everything secret and all knowledge will be lost.
> The other half of the time they say
> > Patents are required, because otherwise everyone will immediately duplicate every innovation without the original
> > inventor being able to get any money out of it.
> While both statements can't be right at the same time, they sure can be wrong at the same time.

Sure, because everything written in absolutes is always intended as such.

And every statement can be qualified in a way that makes it potentially true. What people try or not is not the issue, it's what the actual situation is. It's simply not true in the digital economy that in general innovators cannot make money off of their innovation because other people immediately duplicate it. Just like they don't work in a vacuum, and should they have to pay a royalty to every single patent owner whose "innovations" they are "stealing" pretty much no one would be able to sell software at a profit except for the behemoths out there. There have been plenty of surveys and economic studies on these topics, a bunch of which I once summarised.

At the same time, given that pretty much no software developer ever looks at patents (and if they look at them, they're more likely to get a headache than inspiration), their disclosure value is not that great either. Let's not even talk about business method patents, many of which are disclosed by simply putting them into operation (it's hard to keep one click a secret). And then there's the point of network effects, where overall value and efficiency increases exponentially as more people/computers use the same standard to communicate and exchange information. Patents would have to offer really massive benefits to offset all of this overhead.

So by not writing these statement as absolute rules that somehow must govern behavior, but rather as expected strategies people will follow we can see not only how they can both be true, but how they are actually both accurate as they are already partially in play today (see trade secrets and GPL issues). The only difference is that we presently have an additional strategy of 'get a patent' which changes the game.

It adds red tape and leads to a tragedy of the anti-commons (because a patent does not guarantee that you, or anyone else for that matter, can make use of whatever you monopolised; it only allows you to forbid others from making use of that knowledge). Thereby it naturally leads to concentration of power, which in fact is readily acknowledged by and even seen as a positive evolution by certain people in charge of forming IP policy.

Come on, quit that old bullshit. The European Commission is appointed and controlled by the governments of the member states, all of them democratically elected.

Your point being? The EC is a group of political appointees, with a history of pushing agendas at odds with the wishes of the electorate and their democratically elected representatives.

Remember the software patents battle?

You see, this time US "imperialism" exports independence day. Higgs and ACTA rejection. A great day to celebrate!

The European Parliament has to give its consent. The vote was that it denied its consent.

The EC also invoked the European Court of Justice. The ECJ will simply say, we cannot rule on ACTA anymore because the process is terminated.

FFII for analysis.

I love the way software patents advocates present dystopian hypotheticals as a form of argument when we already KNOW what the world looks like without software patents.

It's a world of Turing Machines (1936) and von Neumann architecture (1945), machine language and assembly language (1951), compilers (1952) and loops and switch and if / then statements and LISP (1958) and packet switching (1960s).

It's a world with operating systems and databases and word processors and spreadsheets and browsers and web pages.

It's a world with the ARPANET, TCP/IP, the internet and HTTP and FTP and DNS.

In other words a world where the most fundamental, most visionary, most complex, most resource intensive, most ambitious and most beneficial contributions to humankind are conceived, created, disseminated, taken up and used in creating incalculable social, scientific and economic benefit for all.

So just remember this next time you hear someone going on about what a bad place the world will become if we abolish software patents.

And please, give generously each year. Your continued ability to pay your bills depends on it.

http://www.ffii.org/Donations

https://www.eff.org/

Note that the Data Retention Directive was adopted in 2005 mostly due to pressure from the UK Labour government. Initially it was claimed to be anti-terrorist; those claims were then amended to anti-crime and anti-paedophile.

It's most probably aimed at quelling the civil disturbances that some authorities see as an inevitable part of our chaotic post-carbon future.

The FFII reports they convinced the Parliament of The Netherlands to adopt an anti-ACTA motion:

[Second Chamber] asks the Government not to sign the ACTA treaty as long as it is not conclusively established that the treaty does not conflict with fundamental rights,

As Amnesty, OSCE, Human Rights Commissioner Reding and others have their doubts it looks like a poison pill.

I'm going to go with "argumentum ad verecundiam" here - I know... bad form.

Here's Professor Emeritus Knuth's Letter to the patent office.

Here are a collection of quotes with references.

If you don't know who Donald Knuth is, you should find out before trying to participate in this discussion. It seems unlikely to me there exists a software patent that isn't derivative of his work.

And since I'm a Groklaw fan, here's a Groklaw article about the good professor's views on the subject.

Signing does not mean a thing because the European Parliament still has to decide whether to give its consent, and when a single nation asks the European court of Justice, or the Constitutional court then it's dead, because it is against EU Treaties/constitutions. it's not too late to get involved.

No it doesn't. You are comparing two different systems and claiming that they are the same; one system where software can be patented, and another where hardware can be patented, but the hardware can contain firmware. Those are two different things. In the E.U. you can't patent pure software, or to use your terminology "software not tied to a machine". This is not the same as the U.S. - in the U.S. software is patentable. You don't have to put it inside a machine and patent that - you can literally patent pure software. Foundation for a Free Information Infrastructure says:

"Europe already has uniform rules about what is patentable and what not. They are laid down in the European Patent Convention of 1973. In Article 52, the Convention states that mathematical methods, intellectual methods, business methods, computer programs, presentation of information etc are not inventions in the sense of patent law."

Bolded for emphasis. That is not the same as the U.S. system. The EPO did grant some software patents in anticipation of new legislation, but introduction of the legislation failed:

"The EPO has meanwhile granted more than 30,000 pure software patents in anticipation of the new legislation, and the number has recently been rising at a rate of 3,000 per year... the European Patent Organisation, i.e. the intergovernmental organisation that runs the European Patent Office, attempted to delete all the exclusions listed under Art 52 of the European Patent Convention. Due to public resistance which they apparently did not anticipate, this effort failed."

It is supposed to be an introduction, a short two-minute film to raise awareness, not an hour long masterclass.

You should check out the large amount of material available online. You could start, oh I don't know, by the link suggested at the end of the video http://lqdn.fr/acta

Or http://acta.ffii.org/ or http://www.edri.org/copyright/faq-on-leaked-acta for instance.

That video generates more questions in my brain than it answers.

What questions?

"ACTA is bad, nnkay?" it says, which is not enough.

It's enought for the video. Nobody would watch a 30 minutes boring video quoting obfuscated texts refering to more obfuscated texts already signed by countries dozens of years before that.

The point of this video is to try to get the interest of a lot of people. The one who didn't heard of ACTA before. Once these people are interested, they can seek informations by themselves. The link provided in the video, that's a good start. Or see the wikipedia page, seek on the search engine, or seek on their favorite online newspaper.

The extremely one-side view on ACTA the video provides sickens me.

Well, what do you suggest? A more positive approach? Like "Think of the future, nobody will be able to share knowledge, wouldn't that be great?".
What if everything is bad in ACTA?

It doesn't even tell me who "The Negotiators" are.

That's the point. "The Negotiators" are not known. ACTA has been negotiated in secret during the past few years. Withoout the control of the democratically elected parliaments or other institutions. Now the treaty is finalized and signed by some Countries. The other Countries now have a gun pressed against their head "sign it or you're out".

I can't say "No" to ACTA based on this video alone.

Of course you can't.
But maybe you can say no to ACTA based on this video + my comment + few other comments on this news, + on https://www.eff.org/issues/acta + https://www.laquadrature.net/en/acta + http://www.michaelgeist.ca/index.php?option=com_tags&task=view&tag=acta&Itemid=408 + http://www.fsf.org/campaigns/acta/why-acta-declaration + http://www.ffii.org/ + your own sources of information.

And if someday you want to say no, here is how: http://www.laquadrature.net/wiki/How_to_act_against_ACTA :)

IIUC, this is not exactly correct. You can patent software in conjunction with a technical process that is not purely data processing. I.e. a specific server app: no patent. A specific way of controlling a washing machine: patent, together with the contraption to excert control. This has been cemented in a recent final ruling by the german high court that handed a Siemens a nice painful defeat as they tried to patent software.

I wonder if the mp3 patents would be up for overturning under this new view.

I am a little bit optimistic wrt software patents. Almost everyone who understands the issue dislikes them, except of course the cynical lawyer$ who only think of money. Anyay: not a time to become complacent. Write to your congressmen/MEP, donate to the ffii, etc.

Do you spend 100s of millions of dollars on research to formulate new ideas and then bring them to market? Would you be able to afford to do that in a world where everyone freely copied your ideas and took them to market preventing you from ever recovering investment.

It's called competition. Why don't lawyers ask for patents on court strategies? After all, by not doing so their peers can steal those strategies and win cases without paying the original inventor of that strategy a single penny. And yet the entire lawyer profession hasn't imploded yet due to no one being interested anymore in helping their clients to the best of their abilities even though everyone else can look at how they argued the case.

No two cases are identical, you say? You can't just "take an argument" from one court case and apply it to another? Clients also care about how your ability to talk to them to figure out where they come from, what their background is and the background of the other party, and how to puzzle all the pieces together in this particular case? In fact, the most valuable part of the services a lawyer provides is not whether or not he uses some special argumentation, but rather how he tailors everything to the current case and uses whatever is most appropriate under the circumstances? Lawyers build their cases based on precedents argued by their peers? And their innovations are an inherent part of their work that they have to do to be competitive and get good results, rather than something they only do to get exclusive rights to them and get other people to pay for the privilege of doing something similar? And innovating in arguing before a court is definitely not something they stop doing because most of it becomes public without them being able to get royalties for it later?

Maybe the lawyer profession isn't that inherently different from software development after all...

And yes, there is more than philosophical rhetoric: in general, patents are some of the least used and least valued tools to ensure competitiveness for software firms (see esp. slides 14 and 15). This has been shown time and time again both in the past and in the present.

The best quote I know of is still this one from Robert Barr in a hearing before the FTC (and Cisco most definitely invests hundreds of millions in R&D, so it even addresses your point literally rather than only generally):

My observation is that patents have not been a positive force in stimulating innovation at Cisco. Competition has been the motivator; bringing new products to market in a timely manner is critical. Everything we have done to create new products would have been done even if we could not obtain patents on the innovations and inventions contained in these products. I know this because no one has ever asked me ‘can we patent this?’ before deciding whether to invest time and resources into product development.

On the other hand, I am sometimes asked whether anyone else has a patent on a product or feature that we are considering. But, despite the fact that our products are independently developed, that we do not copy, I can never definitively ‘clear’ a product or feature, or determine the costs of licensing in advance.

I.o.w., he basically said the same as the GP.

Florian Müller is a PR expert, not a patent expert. And it's primarily the FFII that killed the software patents directive, not Florian Müller. To some extent even in spite of him.

Yes it does:

http://webshop.ffii.org/
http://fosspatents.blogspot.com/2011/05/what-app-developers-need-to-know-about.html#jurisdiction

so let's see. you are not a subscriber so no early views...

Every registered user can, after logging in, look at http://slashdot.org/firehose.pl (not the static page you get redirected to in case you're not logged in) and see all stories that are submitted.

yet you wrote up all of this complete with links in the 4 minutes that elapsed between the story's posting and the submission of your own post.

Actually, he simply posted the contents of the main article referred to in the post, because the server hosting it has been slashdotted (I should have used an nyud.net link). And the reason he had a local copy is probably because he's on the same mailing lists as I am where the article was first announced.

And he didn't submit the article, I did.

May 1, 2011

By Ante

In January 2011, prominent European academics issued an âoeOpinion of European Academics on Anti-Counterfeiting Trade Agreementâ (ACTA). The academics invite the European institutions, in particular the European Parliament, and the national legislators and governments to withhold consent of ACTA, âoeâ¦as long as significant deviations from the EU acquis or serious concerns on fundamental rights, data protection, and a fair balance of interests are not properly addressedâ.

In April 2011, the European Commissionâ(TM)s services put on-line comments to the European Academicsâ(TM) Opinion on ACTA. The Commission denies ACTA is incompatible with EU law.

The Commission fails to make its point in a convincing way. The Commission shows a lack of basic reading skills, does not address points raised by the academics and fails to reason in a logical way. Regarding the border measures, the Commission actually agrees with the academics. The Parliament should ask the European Court of Justice an opinion on ACTA.

It is too much work to address all the flaws in the Commissionâ(TM)s notes. I will give some examples.

ACTAâ(TM)s damages are higher than EU lawâ(TM)s damages

The academics wrote: âoeSome of the factors mentioned at the end of the provision are not provided for in art. 13.1 Directive 2004/48. These factors should not be adopted in European law since they are not appropriate to measure the damage. âoeThe value of the infringed good or service, measured by the market price, [or] the suggested retail priceâ, as indicated in art. 9.1 ACTA, does not reflect the economic loss suffered by the right holder.â

The Commission states: âoeThere is no conflict between article 9 of ACTA and article 13 of Directive 2004/48/EC. Both provisions refer to ways in which courts can come to the determination of fair damages for the injured party.â

Damages in EU law are based on economic loss suffered by the right holder. The academics show that ACTA goes beyond that. The Commission just calls them both âoefairâ, and sees no difference. This is like saying: âoebig cars and small cars are both nice cars, so there is no difference.â But with cars and with damages, it is not only important both are cars or damages, the size is relevant as well. ACTA exceeds the level of damages in EU law. The Commission does not address the size aspect raised by the academics.

Bringing different things under the same category does not make them the same. Fines and death penalty are both deterrent, they are not the same.

Going beyond economic loss suffered by the right holder is not âoefairâ. It disproportionally hurts for instance startup companies in conflict with major patent holders. The Commission and ACTA advocate seeing damages based on retail price as âoefairâ. Unbalanced enforcement measures may heighten market entrance risks for innovators. Startup companies are often confronted with patent minefields. Even a mere allegation of infringement may easily lead to market exclusion. Startup companies often do not have enough resources to litigate. ACTA is biased against startup companies, the heightened damages hurt innovation.

The Commission states: âoeThe examples given in article 9.1 of ACTA and highlighted by the authors of the Opinion are not mandatory for the ACTA Parties (cf. the provision says âoemay includeâ).â

But this âoemayâ in article 9.1, is permissive towards the rights holders, it refers to âoeany legitimate measure of value the right holder submitsâ. Article 9.1 is not permissive towards the ACTA parti

Microsoft might be many things, but a patent troll isn't usually one of them. That's one reason that Apple and Google are siding with them on this issue, the other being that these big technology companies are the primary targets for genuine patent trolls like i4i.

And yet patents is the only tool MS has to "compete" with Linux.

In a surprising turn of events Microsoft pledged that it will not sue its users for patent infringement.

True, MS is not a pure patent troll, but they don't hesitate to get dirty when it's time to bury the competition -- and that's the "reason that Apple and Google are siding with them on this issue".

Single cases or single threats, law-enforcers and lawmakers can make go away easily.

Yes, it remains to be seen if competitors have simply copied Apple's implementation verbatim, or if they have reinvented the wheel. I wouldn't want to begin to speculate on such a specific case. As before, I'm more concerned about the overall picture, and the real threat a high number of patents pose to society.

I can very much understand why Apple is going down the patent-shaft though: If they've patented all their innovations, Microsoft would never have had the opportunity to become successful while they were small. Apple could've had a stranglehold on most of the booming IT-industry, and we would've probably been several years behind our current developments. The whole industry would've been much more fragmented and non-standard, which would line the pockets of already established corporations like Apple and IBM. Just imagine if IBM could've used patents against clone-makers in the early "PC" era..

Is it really that clear? The way many corporations have gotten away with already having been _granted_ "software patents" in EU is that the claims include texts such as: "an apparatus to operate in so and so manner", while it really is about some embedded program being part of a bigger unit, wether stored in a chip or on a harddrive. The invention itself is typically described as an "apparatus", which could be a microchip, an embedded device or a more generic computer (what's the difference?), interfacing with both hardware and software.

An apparatus is of course hardware and have been patentable since the start. All programs, software, are totally dependent on hardware, so you can never leave hardware out of the equation. Thousands of such patents tying hardware and software have already been granted in EU, but are as of yet, unenforcable since they really are software patents in disguise. There is a big corporate push, especially from USA corporations, to change the laws in EU to make these patents enforcable overnight though. So the minefield has already been prepared for EU. An entry point to this issue can be found here: http://eupat.ffii.org/

Software is simply an extension controlling hardware ("apparatus") in an algorithmic manner. Corporations are just pushing the limit of "apparatus" to include more and more generic implementations. Corporate goals however, conflicts in this case with the benefits of society and the mutual contracts we agree on.

As stated, when concerning an "invention", the borders between hardware and software becomes "fuzzy", however if I cannot convince you, then I must assume you are taking a more theoretical approach to understanding this issue. My understanding is concerning real-life decisions: Which patents should be granted and not granted by the Patent Offices, and what are the consequences of the current patents being granted every year, in both USA and Europe.

I'm by no means an expert, but this is the gist of my understanding of it, how "apparatus" have been abused to extend inventions to software. As a starting point, you could check out Bitlaw's history of software patents:

http://www.bitlaw.com/software-patent/history.html

Software patents are as of now fully patentable in the USA and EU, and are also fully enforcable in USA contrary to the ambiguous status in EU.

Where to go from here? If only hardware is restricted by patents, corporations would try to put more control into hardware, which is both wasteful and backwards, contrary to the current trend of minimizing costs by putting more and more logic into software. Here, the patent system is holding back the progress and evolution of our society, and probably in many more ways than I've mentioned here.

Business patents are indeed ridiculous, I agree. But they are very real as well: http://en.wikipedia.org/wiki/Busine

Microsoft kind of does oppose software patents. When have you seen them going after other companies if they don't provoke the legal fight first? They have also freed their patents to open and free-to-use patents organizations. The only cases where Microsoft has used their patents portfolio to fight against patent trolls is, well, when the patent troll has started going after MS first. Ultimately, the whole software patent system is faulty. But currently, companies have to go by it and that means Microsoft has to register their patents too. Blame the system.

NO: http://eupat.ffii.org/gasnu/microsoft/index.en.html

I agree. Last I heard, they only enforced IP rights when non-Chinese companies infringed (or appeared to infringe) upon a Chinese company's IP.

Anyone know if China's still doing that? (with references)

Where are your references that they actually did that?

On a side note, several years back I attended a speech by David Martin, who is founder/CEO of the company M-CAM, which is specialised in evaluating patent portfolios (such as determining how many claims overlap with other patents, likely validity etc). It was so interesting that I transcribed it. That page also contains the audio recording.

One of the things he mentioned is that China has a requirement that whenever the state purchases technology from a foreign interest, all "IP" for enabling technologies and know-how must be transferred as well. Many Western companies figured the Chinese wouldn't know/comprehend the exact patent rights they gave to the Chinese, so they only transferred rights to second-rate patents that weren't worth the paper they weren't printed on (crappy patents don't only exist in the software world). Once the Chinese caught up with this practice,

• Western companies suddenly started losing out on a lot of bids to large projects
• the Chinese started closely scrutinising the patents supposedly held by these foreign companies

It's easy to accuse the Chinese of "stealing" everything, but (just making up these numbers) what if 48% of what's supposedly stolen should actually have been transferred to them in the first place according to contractual obligations (nobody ever forced those companies to do business there if they didn't like the terms), 48% consists of bogus patents and the other 2% is simply the equivalent of the Nokia/Apple/Google/Microsoft/HTC/LG/... patent infringement lawsuits that you have in the US mobile industry (are all those companies "thieves", copycats etc)?

I also think the "Probably stolen?" subject of this thread shows incredible ignorance. China probably has more engineering majors graduating every year than any other country in the world. Do you honestly think that the Chinese for some reason are inherently more stupid than us Westerners and cannot come up with anything innovative? Especially "innovative according to patent office standards"?

As far as I can tell, they've simply learned the tricks of the trade. For decades, "intellectual property" allowed us to have the best of both worlds: cheap labor from China and nevertheless preventing them from making cheap knock-offs and importing those back into our territories (they could sell them over there, but nobody cared about that since nobody had any money so there was no real profit to be made anyway).

Now they are starting to beat us at our own idiotic game. And still some people think they have the moral high ground and yell "but they steal everything from us, this cannot be". Wake up.

ACTA is bringing that to the rest of the World. One Camembert to rule them all.

No, ablution of patents is best. Many proponents of patents have stated how important patents are to innovation, but where are the economics studies supporting this? While a number of economics studies have concluded there are negative impacts of patents, where are those that claim there are positive impacts? As noted in Ars technica's article Study: free markets superior to patent monopolies the debate has made it's way to Science magazine. To cite one example, in The Patent Paradox Revisited: An Empirical Study of Patenting in the U.S. Semiconductor Industry, 1979-1995, in "Rand Journal of Economics, Vol. 32, 2001", based on studies by Yale and Carnegie Mellon "R&D managers in semiconductors consistently reported that patents were among the least effective mechanisms for appropriating returns to R&D investments".

Falcon

Except that Apple has no monopoly. It has a high market share. That is a different thing entirely. Apple doesn't use that market share to lock people into its products. There are lots of competing products that are good solid competitors in any of its markets. You can use competing products with any of its products.

That is a traditional antitrust reasoning but apparently the EU has realized that the market can't take care of itself unless interoperability is ensured.

[...] gaming consoles, including Microsoft's offerings. But of course Florian you always defend Microsoft.

I don't know who told you that. Whoever told it to you will certainly not have been able to substantiate this claim because I simply don't do that. I talk about certain issues facing the IT sector regardless of which companies present them. On my blog I have written negatively about a Microsoft FAT patent and a court decision to uphold it; my blog links (in the righthand column) to a couple of websites that criticize Microsoft very aggressively; I linked to TechRights.org several times, a website known for linking about everything in the world to Microsoft but sometimes they do come up with interesting stuff; I mentioned Microsoft' lobbying for EU patent reform in a list of company names that started with IBM and them (and was quoted directly from an FFII presentation)

; I mentioned Microsoft's lobbying (alongside IBM) for software patents in New Zealand, etc.

What I do have to recognize is that things I thought and said five or six years that Microsoft would do concerning patents and open source haven't happened. In the meantime there was the European court decision on the antitrust case and there have been other dynamics in the industry. That doesn't mean that their patents aren't a potential future threat, but there's no clear and present danger while IBM and Apple use patents against open source in ways that are really meant to shut out competition (Microsoft simply doesn't do that with patents, at least not at this stage; they want to do licensing deals but leave people in business). So I don't even defend them because there's simply nothing that they do concerning the assertion of patents against open source that poses a problem (again: that's the way it is now, but I can't substitute my past assumptions for today's reality if I want to be reasonable and facts-based).

Concerning the significant market players interoperability initiative, that's not antitrust where you have a case of companies A, B and C vs. company D. This is about legislation. The law that will come out of the process will apply to every significant player equally. There won't be a Microsoft carve-out in it, nor an Apple or IBM or whatever carve-out. Especially not since Mrs. Kroes is in charge. So let's hope we get a set of really good rules that everyone, including but not limited to Microsoft, will have to comply with.

The EU data retention directive was pushed principally by the UK government.

The state loves to censor people - since nobody really believes in democracy.

Actually, I do, even though it's obviously not flawless. I've even directly seen it in action. In the European Parliament, in fact.

I do agree that being cynical and just railing against "the man" and "the kids" is much less energy intensive and less likely to result in disappointments though. It's also part of the problem.

It is called Geographical Indications. Thanks to ACTA you will soon have it protected in the US, Canada, Australia, New Zealand etc. too.

On my FOSS Patents blog, I have published a report juxtaposing what the EU official said with the FFII's criticism [blogspot.com].

The FFII and the European Union are institutions I admire. You are very opinionated as an activist about patents but only strong political organisations like these may keep a patent office accountable. Patent reform is high on their agenda, blogger activism is not enough. We need to support them (donate to FFII) , support their agenda in any possible way. Without the EU there would still be wars in Europe.

Software patents have never been allowed in Europe, and the UK like to make a big stand against such patents.

http://eupat.ffii.org/log/intro/

It's really only the Americas that have software patents.

http://en.wikipedia.org/wiki/Software_patent

As a resident of one of the mentioned problem countries, I think it might be helpful to point towards an organization to rally behind to oppose the secrecy:

ACTA workgroup of the Foundation for a Free Information Infrastructure e.V.

As a resident of one of the mentioned problem countries, I think it might be helpful to point towards an organization to rally behind to oppose the secrecy:

ACTA workgroup of the Foundation for a Free Information Infrastructure e.V.

"Tee" means "Tea" in Germany. And indeed it is time for a tea party to get rid off software patents, once and for all. But so far as I can see only the FFII takes the mission seriously while many other players including the EFF and FSF (RMS excluded) somehow accept software patenting.

What can done?

When the FFII asked the EU Council of Ministers for opening up the documents regarding the ACTA negotiations, the Council refused, with (a.o.) the argument that this "might affect relations with the third parties concerned".

So the US can't release it because others might object, and the EU can't for the same reason. Inquiring minds want to know which mysterious third country is kicking both the US and the EU into submission. Canada?

Without patents, it would be even easier for medium/large/mega cooperation to prey on small companies inventions,

Inventors have first mover advantage and so has at least a little tyme to recoup development costs. Then because of competition, prices should come down, better products will be made, and or improvements will be made. Some economists have studied patents and concluded they have negative impacts.

Falcon

Software patents are a great idea, but the execution is so completely flawed that I'm convinced we'd be better off without them.

Patents, whether hardware or software patents, are bad ideas. Not only do they have negative impacts on economics but they also prevent others from using their own invention. When 2 or more people invent the same thing at the same tyme, with patents only the person who got the patent can use or distribute the invention. Why should I spend thousands of hours and millions of dollars to invent something when I can lose the ability to use it because someone else beat me to patenting it?

Patents are not needed.

Falcon