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.'"

Comments

On the other side of the pond

[CGP314]

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.

Re:On the other side of the pond

[slipgun]

Stupid patent/copyright laws, the department of homeland security, total^H^H^H^H^H terrorist information awareness, patriot act, patriot act II, and cute girls with British accents made me move to London.

There is a lot of authoritarian crap going on in America at the moment I agree, but have you any idea how much power the authorities here (UK) have? Under the Terrorism Act 2000 the Police are allowed to break up a meeting of three or more people without *any* sort of court order if they believe it is for terrorist purposes. There are cameras everywhere. The authorities (Police, Customs, Inland Revenue and a few others) can see who you've been emailing without a court order (RIP Act 2000). There's talk of introducing a compulsory ID card (smuggled in through the back door as an 'entitlement card'). I hope you don't drive or smoke, because you'll pay through the nose for it (unless you bring it in from abroad). But this is turning into a rant, so I'll stop now. And yes, I like our girls very much as well.

Re:On the other side of the pond

[rking]

I've never quite understood what's so horribly wrong with a compulsory ID?

I'm not sure there is any intrinsic problem with one.

In the UK it's partly a cultural thing. We had them in World War II I think, and destroying them afterwards was a sign of things returning to normality. Bringing them back sounds like a backwards step.

Also, successive governments have come up with spurious arguments for why we should have one, which makes everyone suspicious and uneasy.

It's a bit like the Intel processor ID thing: there's no problem with the idea in principle but when they come out with that rubbish about it being to aid internet shopping people get nervous wondering what the real reason was and why they were lying about it.

Mostly the UK Government has tried to claim that having an ID card would reduce crime but then refuse to say what crimes (bank robberies? murders? pickpocketings?) and how.

For situations where evidence of ID is desirable, it isn't that hard to require some (which I'll admit is one reason for saying that an ID card can't do any harm in itself). There's a cost issue as well, though that isn't a reason people would usually react so negatively.

The Economist

[n0nsensical]

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...

Re:The Economist

[n0nsensical]

Also, four times a year they run a special called the Technology Quarterly that covers new things in the tech world, which coincidentally was also in this week's issue. The topics this time around included cheaper solar cells, superconducting power transmission lines, nanomaterials, and quantum encryption.

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.

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.

Re:The Economist

[bm_luethke]

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.

Re:The Economist

[Troed]

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.

Headaches

[Serious Simon]

Moreover, there is another headache. The harder it is to patent computer-related inventions in Europe, the wider will be the legal gap with America.

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.

Simple Rule (with Rider)

[IBitOBear]

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.]

Economist opinion column

[Anonymous Coward]

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:

"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? story_id=2020866

Re:Economist opinion column

[pkaral]

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.

The "Technical Contribution" Criterion

[Reimer Behrends]

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.

Re:The "Technical Contribution" Criterion

[mickwd]

"...a computer-implemented invention must be susceptible of industrial application..."

There are very few pieces of software which would not be useable, in some way, in some particular industry.

What is "industry" ? Is there a "childcare industry" ? If so, would even educational software and games "be susceptible of industrial application" ?

The phrase "industrial application" is almost meaningless.

"In order to involve an inventive step, a computer-implemented invention must make a technical contribution."

It could be argued that any computer program / piece of software is, by its very nature, technical.

What is the "contribution" contributing towards ? It could be argued that every single instruction executed by a microprocessor (with the exception of the "NOP" (No-OPeration instruction)) is affecting the state of the computer system in some way, and is thus providing a "contribution". Even the "NOP" instruction is often used to provide a timing delay to allow a computer program to operate correctly with the hardware it is attempting to control. Thus, even a single microprocessor "NOP" instruction is making a "technical contribution".

The phrase "technical contribution" is meaningless.

In turn, the phrase "inventive step" becomes meaningless.

The phrase "industrial application" is almost meaningless, meaning that the definition of what is patentable is almost meaningless.

Re:Pearl of wisdom?

[Alain Williams]

• Those that fail to learn from history are doomed to repeat it.

Sorry - I am not allowed to profit from that advice since Jeff Bezos has a patent on it.

US Lobbying pro Patent

[Elektroschock]

Currently the US government, represented by its patent office, is still bullying other countries wherever it can, be it bilateral or multilateral negotiations, asking them to adopt the US rules of patentability of abstract ideas dressed up in the terminology of the universal computer.

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.

Re:People is Europe know and care about ...

[pirhana]

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.

Patents and propaganda

[D4C5CE]

The European Commission wants to avoid the American situation

...or so they say. In fact, many European politicians do know that allowing software patents and business method patents inevitably leads to countless trivial patents.

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.

info on the EU software patent vote...

[nickos]

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