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The Economist Contrasts American, European Patent Approaches
fiannaFailMan writes "The Economist has summarised recent developents in software patents and contrasts the American and European approaches. 'The European Commission wants to avoid the American situation, in which case law drives authorities to issue computer-related patents all too easily, in particular for business methods and algorithms.'"
If the gap were closed by fixing the US patent laws, that would result in less headaches than having Europe repeat the mistakes made in America.
If you enjoy reading trolls, browse at -1. That's what I do. If you'd rather only read on-topic comments, use a higher threshold. The system is working as designed; the people who browse at 0 or above don't want to see the article modification posts.
I'm not sure if everybody realizes it, but if it is true, the most important part of the article is that supposedly Arlene McCarthy has finally agreed to include the "use of controllable forces of nature" as part of deciding whether an invention makes a technical contributions.
Let's backstep a few decades. By the late 70s/early 80s, the German Federal Court had to decide on a number of patent applications. One involved an accounting program, one a system for anti-lock brakes (which was controlled by software). They found the former unpatentable, and the latter patentable. The distinguishing criterion was that the anti-lock brakes taught new ways to control forces of nature, whereas the accounting program was essentially an "instruction for the human mind", even if it was executed by a "machine that was used according to its intended use".
With criteria for the patentability of these two extremes (a pure software solution, and a hardware solution with some tightly integrated software aspects) established, and technicality being the distinguishing criterion, and this state of affairs subsequently encoded in European patent law by saying that "programs as such" (as opposed to programs that were integrated with hardware solutions), the past few decades courts and patent offices started a battle over the gray area in between. The German Federal Court later allowed patentability increasingly to encroach on the software side, but the greatest abuse was done by the European Patent Office, which came up with more and more convoluted rationales to interpret the "as such" clause to allow for software patents, despite the clear legal precedent.
Now things are in the hand of JURI, the European Parliament's committee for Legal Affairs and the Internal Market. The initial committee proposal for the patent directive had a wishy-washy clause about something being a "technical contribution", that wouldn't have changed anything and harmonized nothing, and would have especially allowed the EPO to extend its creative twisting of the law even further. And with the planned enactment of the Community Patent, to be granted by the EPO, the door would have been wide open for EU-wide software patents. Note that the problem with the proposal was not so much that it allowed for software patents, but that it was poorly written law, with a million ways to interpret it. A number of clarifications -- including the "controllable forces of nature" criterion were proposed to JURI, but they were rejected.
So, if JURI finally concedes the point and allows for a proper, clear, and unambiguous criterion for technicality, that should alleviate quite a few concerns.
I hope they're right. If Europe really wants to become more independent from US influence, avoiding a US-style patent regime would be a wise choice.
Even if they don't want to become "independent", avoiding US-style patents would be a good thing on its own merits.
(Of course, if they did want to become independent of US influence, their best bet would probably be to increase productivity, encourage research and innovation, reverse the brain drain, and so on. Ironically, software pattents are supposed to help with most of that. In reality...well, I hope they manage to dodge them.)
Mr. Wade's point is not very interesting. To rephrase his opinion: (1) America has a lot of influence in the world, (2) it uses it further its own interests, and (3) the power is projected [also] via monetary/financial institutions.
Brief comments on these: (1) Great powers have existed in most of civilized history, and examples of one-country hegemonies are not unusual. (2) All countries try to further their own aims. (3) Power projected in this way is usually preferable to military power. Thus, the situation Wade discribes is neither unusual, nor necessarily bad or immoral.
It is quite possible to argue that compared to all other hegemons, America has done less wrong and more good with its power. It is very easy to imagine worse hegemonies - imagine what e.g. a maoist Chinese, marxist Soviet or islamic Iranian hegemony would be like. I personally disapprove of major parts of American foreign policy, but I also try to be realistic about it and its alternatives.
Btw, it is wrong to use the word "empire" in the sense Mr. Wade does. My Oxford Learner's Dictionary defines an empire as "Group of countries under a single supreme authority" (my emphasis). Taking the word 'supreme' out of the definition would make it include the UN, the WHO, the International Olympic Committee etc. etc. The US empire at present covers the American homeland, Iraq and nothing else.
I think it works the other way as well. European software companies are afraid that if unable to patent their innovations, their market will be invaded by American companies who hold American patents to said innovations. This will cause a situation where American companies can compete against European companies in Europe, but Europeans can't compete against Americans in the US.
Rather than implement similar software patents than in America, the EU should argue with the WTO that American software patents inhibit free trade and should therefore be struck down. It would make no sense whatsoever to implement weaker software patents than in America, since American companies would still hold the edge of stronger patents and European companies would still be blocked from competing in the US.
Excuse me? How many million did they have to pay in restitution for patent infringement this week? What about last month?Its because average american is not aware of any real life issues. He is simply herded by the mainstream media and the news "manufactured" by them. Thats not the case in Europe or other part of the world where real life issues are reflected in the media to a great extend. And I think its because of the decentralisation of media infrastructure in these countries. So small players and public entities contribute to the diversity of the news. In US media(mostly) owned by a bunch of business groups who treat it just like any other profit generating business. Goverement agencies like BBC and small magazines/newspapers like "La monde" are good examples.
http://www.nasirudheen.blogspot/
Unfortunately, Europe is entirely capable of creating its own gaffes, as well as grafting them on top of US-originating ideas.
[rant]Why is that nearly every good law the US has that is replaced by a crappy one is passed "because europe does it" and nearly every good law europe has that is replaced by a crappy one is because "the US does it"
Everybody seems plagued by this. They seem to want to take all the crappy laws from each country, the most restrictive from each country, and create a homogenized structure based on that. Why can't they take the good stuff from everyone.
Bah, politicians the world over suck.[/rant]
Ok, I feel a little better.
------- Sorry about the spelling, I suffer from two problems. Dyslexia makes it difficult to spell well, lazy makes it
I don't know much about European politics, but I do know that my government, the Dutch government, will not go against the American will. Money and grand words come from the US, so why bother about the public opinion?
The Dutch people were against the war on Iraq. Our government didn't do or say a thing.
The VS wants the UN to clean up in Iraq. Dutch public opinion: Clean up your own mess. The Dutch government goes to the White House to concur with Bush about sending the UN to Iraq to rebuild it, instead of telling Bush he should have thought about it before launching a war.
The US didn't sign the Kyoto treaty. Our opinion: What the F*CK?! Our government: "Um, Mister America? Could you maybe please, if it isn't too much trouble, please maybe sign it? Of course we don't want to push you or anything, but please reconsider, could you? Please? Pretty please?"
JSF? Don't ask, ok? Just don't ask...
Just some examples to show that The Netherlands won't stop software patenting if the US says the laws are good.
Like a child following his father, the Dutch government holds onto America's hand, following it blindly while looking at all the pretty clouds and birdies.
Do I sound bitter? I apologize.
Please don't mind my spelling and grammar mistakes.
No you didn't - learn some history. Russia saved Europe - if they hadn't beaten the crap out of Hitler's eastern army he would've rolled over the American-British invasion army in an instant.
Hollywood don't teach history, they teach fiction.
it's in my head
This who IP/legal mess that the US has created will sort itself out in time.
These laws in the US are essentially used to claim stake to larger and larger territories of what might be done, not what will be done. Many patents filed today are to simply protect an ever widening space of technology and business the center of which is their flagship product.
Many of them never intend on utilizing the existing patents, but to prevent any competition from getting too close to them
It's easier to think of this as patents being grazing territory that you are staking out for your own source of food. In many cases, patents extend over more territory than the residents will ever be able to feed upon in their lifetime.
Given this, you have not created a space of potential invention which cannot be used to 100% of it's capacity, but at a reduced level. We now have certain territories of which we cannot enter.
As a whole, the species of inventor cannot utilize all of the potential grazing space available to them and will therefore procede to evolve, grow and thrive at a reduced rate.
The note of evolution is important because inventions are generally based on the previous inventions of others. Without electricity or the transistor we wouldn't have much to play with in computers
Under this restricted access condition, the environments available which provide for a higher level of utilization of the territory will provide for a faster rate of growth and evolution.
What this translates to in terms of Patent development is that the areas which have looser patents laws will provide for a higher utilization of the ideas people come up with. And with that higher utilization will come a faster rate of application and development of even newer ideas. The rate will continue to increase.
Meanwhile, back at the grazing land where everyone has staked out larger territory than required, they will progress at a much slower rate of development and have a overall lower population of viable resources.
This will eventually balance itself out because the US will start to dramatically fall behind the EU in their technological innovations and inventions and the pace will quicken as the US legal system starts to slow down developments in the US further.
The US will become an area not to do business in because of the risk of legal assaults. While the US terroritories and interests (of their Intellectual Property) will be protected, there will be no one from the outside of the US interested in directly participating, contributing, or attempting to profit from this economical environment.
Additionally, no one will be too inclined to accept business from any US held companies because they are backed by their home-based legal system and their own, unappetizing, rules of IP/Copyright/Patent litigation which means that doing business with a US company could land you into a US court room regardless of their being the buyer or seller of a product.
As this process stagnates, the EU and others will continue to thrive on their own and become ever more attractive and viable. People will migrate from the US towards other nations of greater prominence.
This will be to a lesser degree similar to the migration of Cold-War scientists towards the West. They were given the opportunity to think freely and to practice their trakes more openly than they were allowed to under their Communist governments.
This won't be a whole-population migration, it will be a migration of those who have the intellectual drive to be inventive. They will want to go someplace where they can invent rather than litigate. We already have cases of people leaving the USA for better lands where they can develop products and businesses without being asaulted by the US legal system.
The US will become an area to avoid. The US will be required to give concessions to outside nations/business to reduce their IP/Patent/Copyright restrictions in order that they might once again become vi