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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.'"
It's reasons like this that I moved to London.
People is Europe know and care about issuses like patent law and copyrights. No one in the States (outside of slashdotters) has a clue.
The Economist is great. They frequently have articles about patents, SCO, and all of our favorite /. topics, and I haven't seen any bad information like you get so often in lesser publications. This article on patents is just another great example. Bill Gates once said he reads The Economist from cover to cover weekly, hmm...
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.
But UK is the most USA-like country in the Europe :-)
This is not that tough an issue...
If it is, or it *can* *be*, implemented on a computer bought "off the shelf" and optionally modified only by parts bought "off the shelf" [e.g. "I added an eithernet card"] then it can not be patented.
If it has been patented, and the state of "the comercial shelf" from which parts are normally bought [e.g. comp-USA etc] advances to the point where the above rule would make it un-patentable, the patent has reached its terminal lifespan and is no longer valid.
In short, if you don't need a soldering iron [etc] it isn't patentable.
(CPU Microcode is Copyrighted, not patented)
That's it.
[And yes, my name is on a patented thing just now (unless my employer lied about the inventor) so I do know the range and impact of what I am suggesting.]
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
The Economist had a reader suggesting the following, which is the real reason why the EPO (Attention, this is not an EU Agency!) needs to be legitimized by the EU Parlament and why it needs to adhere (uh, harmonize) to current US guidelines:
? story_id=2020866
"Empire, state building?
SIR - You say that American military and nation-building intervention in other countries is likely to be short, because imperialism and democracy are at odds with each other ("Manifest destiny warmed up", August 16th). In the end democracy will win because the subjects will protest and so, eventually, will Americans. Your argument misses the economic face of empire.
Over the past three decades, America's government , particularly the Clinton administration, has constructed an international monetary and financial framework which ensures that the normal working of market forces shores up American power. The framework yields disproportionate benefits to Americans and confers autonomy on its economic policymakers while curbing the autonomy of all others . It provides the material basis of American military supremacy.
The key political feature of the system is that it is not an empire in the sense of an imperial centre and colonies. It is based on "sovereign" states. These states can be left to manage the costs of the system, including the protests of those whose lives are disrupted by it. This is how the modern-day empire can quietly escape the trade-off between imperialism and democracy, most of the time.
Robert Hunter Wade
London School of Economics
London"
http://www.economist.com/opinion/displayStory.cfm
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.
Sorry - I am not allowed to profit from that advice since Jeff Bezos has a patent on it.
Those that learn from history are doomed to watch it repeat.
NewToNix
See
http://swpat.ffii.org/players/us/
a page that gives a small glimpse.
At the recent OECD conference, the US government's representative said that such conferences are useless and the debates of the economists harmful, because the patent system as is is "basically good" and the US will not permit any policy except one that "extends and strengthens" this system. The same representatives have also been doing their best to kill discussions on proper limits of "IP" at WIPO and other UN organisations.
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/
You wouldn't believe it, but here is what the Directive's proponents have admitted themselves:
"Arlene McCarthy, chair of the legal affairs committee, said earlier this month she was not prepared to consider any proposals for amendments that do not acknowledge the patentability of software."
In other words, they do want to conjure up a legal framework which scares even IT industry giants such as SAP, and not just small and medium enterprises, open-source advocates, academics and initiatives such as Attac that are of little importance to those prepared to discard or ignore any arguments made from what is just "the commie corner" in their view of the world.
(P.S.: I am posting the google links rather than the direct URLs, for as of this writing, FFII.org itself seems to be unreachable, at this crucial moment in time...)
The plenary vote on the new patents directive will be held within a few days, so please do contact some Members of the European Parliament (rather not just by eMail) right now and tell them that the introduction of software patents is a mistake their voters will never forget, no matter whether it is made knowingly nor out of ignorance.
Moreover, there is no need to rush to precedential judgment now, only weeks before the World Summit on the Information Society, which (according to proposals such as these) may well turn on its head overreaching IP laws.
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
Those that fail to learn from history are doomed to repeat it.
On multiple levels, yet. The purpose of patents is to get people to publish complete descriptions of their inventions so people will not have to repeatedly redevelop the same technology, but rather be able to build on prior technologies. Where this is failing due to bad implemetation, it needs to be corrected.
The problem comes when things that are not real contributions are allowed patent status. "One Click" should not be patentable, etc.
The EPO has long held to a somewhat higher standard of patentability (and Japan a lower standard) - and if they are going to allow software patents they should adopt a very high standard at least initially to insure that they don't get junk patents. If it turns out that this is the correct approach they will be on firm ground to push America towards the same approach - although it will take legislation, changes in the law are the remedy to court interpitations that are leading towards an ineffective and potentially damaging patent system.
Whether or not this rosy scenario can happen is questionable, but one can hope.
I just got this email from Dr Caroline Lucas, a Green MEP for the South East of England. It makes for interesting reading, and highlights the positions of the major parties. At the bottom of the email she includes a press release called "MEPs must back EU plans for patents for inventions" that was given to all of the Labour MEPs.
Subject: software patenting - the vote has been postponed until the week of 22 September
As a constituent who has emailed me recently on the issue of software patenting I am writing to inform you that the vote, due to have taken place on Tuesday, was postponed until September 24th. The reason for this is as follows:
Back in July we Greens wanted to delay the vote as we knew that some of the big political groups in the Parliament were divided. Furthermore, we want to wait for the conclusions of the work of the Committee of Petitions as there is a petition, signed by 200,000 people against software patents, being presented to the Committee on 30 September.
The PPE (of which the UK Conservatives are members) agreed with the Greens asking for a postponement of the vote, then changed their mind. The Socialists then asked for a delay realising that they were hopelessly divided.
The current state of play within the Socialist group is that the Rapporteur, Labour MEP Arlene McCarthy, is only supported by the other Labour MEPs and half the Germans. The PPE group are mostly in support of Arlene McCarthy's proposal, except for the Catalonian and Scandanavian members (among the UK Conservatives, Malcolm Harbour MEP has been very supportive of Arlene McCarthy). Furthermore, the lead member of the PPE on this issue is Mme. Janelly Fourtou MEP, whose husband is the CEO of Vivendi Universal. The UK Liberal Democrats have been quite silent on this issue despite party policy being opposed to such patents.
The reason why no vote is taking place is that the pro-patenting lobby is refusing to negotiate a sensible compromise, simply arguing that the law, as presently drafted would not grant unlimited patentability of software.
This is simply not true.
Given the strong lobby against the proposed legislation, Arlene McCarthy has launched a counter offensive and below I have copied a press release issued by the Labour Group of MEPs.
I will of course contact you again to let you know if and when the vote proceeds. The Greens are co-organising a demonstration against software patents on the morning of the vote outside the Parliament building in Strasbourg.
Yours sincerely,
Caroline Lucas
Green MEP for South East England
This Press Release was sent out by the "UK Labour Delegation in the European Parliament" to all Labour MEPs on monday Sep 1st 18:11 for immediate publication.
Subject: MEPs must back EU plans for patents for inventions
For immediate release
1st September 2003
MEPs must back EU plans for patents for inventions
Controversial new legislation on patents for computer-implemented inventions will be put to a critical vote in the European Parliament in Strasbourg at the end of this month (Parliamentary Session 22-25 September).
Following a barrage of misinformation about the new EU wide patenting proposals, Labour MEP Arlene McCarthy - who wrote the Parliament's Report on the new proposals and is steering it through the Parliament - spoke out against the systematic campaign of misinformation being waged against new rules in the run up to the Strasbourg vote saying:
A proposal for an EU wide law on patents for computer-implemented inventions is essential both to protect the interests of European Industry and prevent the drift towards US-style patenting of business methods. In a situation where both the European Patent Office (EPO) and the 15 national patent offices are handing out patents for computer-implemented inventions, an EU law can assist in clarifying the limits to patentability in the field of computer-implemented inventions. This would give industry more
Essentially what have we got with patent laws on software?
A very very sick US software industry that is on life support, with very little innovation.
And what about the largest markets for software right now such as China? What do they think about our software IP system?
Obviously they do not think it is fair. China is taking steps to make sure they do not incorporate ANY western software technology into thier products, going as far as constructing thier own Microprocessors, Motherboards and version of Linux to avoid software IP controls.
No country with a expanding market would agree to the US version of IP or its restrictions.
In the end, what does that do for the US except lock us out of new markets by governments who recognize the American copyright and patent system for what it is: To prevent and exterminate competition, kill the idea of ownership of ANYTHING and create a legal system that allows any company with enough cash to set artificially high prices.
Everything about computing in the US has become cheaper outside of Microsoft's control, except software. Why is that?
Why MUST OS software cost more than half of the basic price of computer equipment, and continue to increase when every single solitary aspect of computing has followed a cheaper, faster route?
I will tell you why: American Software Patents, American Copyright Laws and crooked politicians who have been bought off and have tossed our Anti-trust laws out the window.
From that window they also tossed out future access to markets as companies and countries over seas see how sick the American information technology industry is and what it has become.
If you have been a reader to slashdot, you already know that many MANY products released over seas are far better than anything you could possibly buy here.
Why is that? Why is this increasingly becomming an issue that better PDA's, better Cell Phones, better software is increasingly NOT in the US and you cannot BUY it here either.
All we get is a new version of Windows to make it easier to use...
easier for Hackers, terrorists and foreigners to break into our corporate and government institutions, to use, I mean.
Europe should ask itself does it really want this sort of legal lunacy, where even if you wanted to FIX software under our copyright law, to prevent such breakins it would be illegal to do so?
Even if you bought it for Christ sake after signing a DMCA copyright EULA that says you cannot sue the company you bought the software from?
The US IP law and Copyright law as written is out of control, and it be rewritten to prevent our allies and far east block nations from viewing us and our software products with such suspicion.
In the end it locks us out of these markets and sends jobs over seas.
Is it any wonder? Software in the US is incredibly expensive, but not directly because of what we pay our programmers, but because software IS expensive in a market that has not competition.
American software companies can innovate, if they are forced to do so, when faced with cheap labor overseas.
But innovation is impossible in a market that patents ideas, copyrights information for 100 years at a time and allows companies like SCO to not produce anything innovative with thier OS except a legal summary against IBM.
Our very own laws are preventing us from competing effectively in all levels of maunfacturing software.
I hope Europe doesn't make the same mistake we have so at least they can participate in the enourmous software market opportunities in the far east to sell thier products thier, unlike the US which is basically a write off at this point.
-Hack
Got Geometrodynamics? Awe, too hard to figure out? Too bad.