EU Amends Software Patent Directive (Suggestions)

jopet writes "The EU has amended its draft proposal for a directive on how to handle patents on "computer-implemented inventions'. Several harsh points have been dropped and clarifications on what is patentable at all have been added. Good to see that protests and petitions can make a difference." YHBT. These are the suggestions from June.

Comments

Old draft from June

[Anonymous Coward]

It says clearly that the draft is from 18th June 2003 in the top left corner. So how can this be news? Does *anybody* REALLY know/care if all those petitions against eu-it-patents are really still relevant? Does the right hand know what the left hand does? Do petition site owners know what place their petitions belong to? A MEP or (already!) the toilet? I don't know...

Amendment 20, Article 6 a (new)

[perttu]

Article 6a

Member States shall ensure that wherever the use of a patented technique is needed for the sole purpose of ensuring conversion of the conventions used in two different computer systems or network so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement

Holy Crap!

[kurosawdust]

Linus and Alan Cox must've said something to light a fire under the EU's ass! Maybe they mentioned off-hand that they had been hanging out with ESR and were starting to take a "liking" to firearms... :P

Seems good.

[levell]

The changing seem pretty good e.g.from the justifications:

Unlimited patent protection for software could make it illegal under patent law to engage in reverse engineering practices employed by software developers to achieve interoperability as currently permitted under the exceptions in the Software Copyright Directive. Therefore future EU-legislation related to software patents must include an explicit exception to patent rights in order to ensure that developers of software can continue to engage in the same acts to achieve interoperability under patent law as they are allowed to today within the limits of copyright law."

and: "It is essential to monitor the impact of the patentability of computer-implemented inventions on small and medium-sized undertakings. "

and: This recital makes it clear that it is not enough to specify the use of a computer (i.e. of technical means) to make a computer-implemented invention patentable. The invention as a whole must make a technical contribution. Ordinary data processing is not enough.

and finally: It is essential to make it clear that this Directive is not revolutionary and will not change the status quo as regards the patentability of computer-implemented inventions. It will, however, make for legal certainty and set clear limits as to what is patentable in this area.

As someone who wrote to their MEP, I'm pretty pleased with the changes, looks like we made a difference!

article 4a: exclusions from patentability

[sandman4k]

One of the most important amendments they added is article 4a:

Exclusions from patentability:

A computer-implemented invention shall not be regarded as making a technical contribution merely because it involves the use of a computer, network or other programmable apparatus. Accordingly, inventions involving computer programs which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run shall not be patentable

Some points

[sufehmi]

• "...(online) petition can make a difference" ?
  I won't be too sure about that, not when many MEP doesn't (have time to) browse Internet regularly.
  (read Tom Chance's story about his lobbying efforts)
  
  
• It STILL allows software to be patented.
  
  
• Although with many restrictions, including declaring that business method/algorithm to be non-patentable.
  
  
• BUT we have witnessed cases where corporations are able to twist interpretations, and challenge everyone who questioned to go to court.
  Small companies/individuals, which can not afford the cost, will simply admit defeat and comply to whatever the big corporations are demanding them to.
  
  
• So personally, I think we still need to do a lot of real (not virtual) lobbying to ensure that software are not patentable.
  EU have no software-patent legislation now, and to my knowledge, there are no CLEAR cases that justifies this (feel free to enlighten me though)
  

Just my 2 pence on the topic.

Good Thing

[RAMMS EIN]

I am happy to see that the EU listens to criticism. I am even more happy to see that they adapted the directive to make it abundantly clear that algorithms as such cannot be patented, and explicitly upheld the right to reverse engineer. This is a Good Thing.

However, there is still cause for alarm. For example, what is meant by:

In order to be patentable, a computer-implemented invention must be susceptible of industrial application and new and involve an inventive step. In order to involve an inventive step, a computer-implemented invention must make a technical contribution.

There are quite some terms here that could be interpreted wide enough to still pose a threat. Moreover, this is just one proposal; it may change again in the future. Still, I sigh in relief.

Main Amendments

[Marlor]

As far as I can see, here are the amendments that will have the most impact:

(13a) However, the mere implementation of an otherwise unpatentable method on an apparatus such as a computer is not in itself sufficient to warrant a finding that a technical contribution is present. Accordingly, a computer-implemented business method or other method in which the only contribution to the state of the art is non-technical cannot constitute a patentable invention.

(13b) If the contribution to the state of the art relates solely to unpatentable matter, there can be no patentable invention irrespective of how the matter is presented in the claims. For example, the requirement for technical contribution cannot be circumvented merely by specifying technical means in the patent claims.

Article 4a - Exclusions from patentability:
A computer-implemented invention shall not be regarded as making a technical contribution merely because it involves the use of a computer, network or other programmable apparatus. Accordingly, inventions involving computer programs which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run shall not be patentable.

Article 6a
Member States shall ensure that wherever the use of a patented technique is needed for the sole purpose of ensuring conversion of the conventions used in two different computer systems or network so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement.

So, business methods and algorithms are not patentable, and normally unpatentable inventions cannot be patented just because they are implemented in a novel way.

Also, an exemption has been added whereby you can't be charged with patent infringement if you are simply attempting to achieve interoperability with another program.

Quite a few of the major issues with the legislation have been fixed. I am surprised... politicians have actually listened to the complaints, and not just made token changes.

Re:Lesser of two evils?

[jez_f]

Still, at least it shows that MEPs *do* listen to their constituents

Once they recover from the shock of hearing from them that is.

Comment removed

[account_deleted]

Comment removed based on user account deletion

The Good, The Bad and The Ugly: FFII take on it

[TeXMaster]

An analysis of these amendments is available here

MOD PARENT UP!

[infolib]

Stop the misinformation please. The editors have been fooled. This guy, on the other hand knows what he's talking about.

This article it totally crap

[Elektroschock]

This is the JURI proposal as introduced by rapporteur Arlene McCarthy and voted in JURI we fight against, an amendment to the original Business Software Aliance/EU Commission proposal.

It is very common that patent protagonists lied to the general public and their collegues. Patent lawyers are like crackers. Cracker circumvent security, patent lawyers circumvent restrictions of patent law. A patent lawyer that cannot file a patent on software patents with the current "JURI amended"-directive proposal would not be worth his money.

Here you find the amendments that will be voted on and FFII's recommendation. FFII and the Eurolinux Alliance are very strong in Brussels and they grow stronger every day. Many parliamentarians listen to us and then the directive protagonists sell the directive as an fulfillment of our concerns, switching rhethorics, but not substance. About 200 people now focus on this issue as activists on our mailing lists. You can subscribe to patent@aful.org or take part in theOnline demonstration or become a member/supporter of FFII or sign the Eurolinux Petition. You can support FFII by donations or even better by contributions. The European Parliament underestimated us. The patent lawyer slaves in Europarl came under strong pressure. We will be a mayor stakeholder in any future debate. The Green Party/EFA Groups impressed by our work even called for Open Source in the EU institutions

The Green/EFA group in the European Parliament has called on the EU, and in particular on the European Parliament, to support free/open-source software by introducing it into their IT systems. In a letter to the Secretary General of the Parliament, Julian Priestley, dated 9 September, the two Green/EFA Co-Presidents Monica Frassoni and Daniel Cohn-Bendit, argue that - as well as supporting Europe's software industry - switching to free and open source software would benefit the Parliament in terms of data continuity, technological independence and budgetary considerations. It would additionally take note of the Parliament's Echelon resolution, which recommended using non-proprietary software to increase technological security.

I also would like to remind you that the US government lobbied against us, esp. against interoperability in the directive. The wrote a letter to EU parliamentarians. I think it is time to internationalize the debate and we need your help to get rid of EU, US, JP ecc. trivial software patents. Unfortunately OSI does not support anti-swpat action and very few US activists joined forces with us. An OSI representative (Russell Nelson) from the board of directors says they are "neutral" not really caring about Intellectual Property, and that's what is written in their FAQ.

This is NOT the version they will vote on.

[klokan]

This is the draft version of June 18, which is the one that was supposed to be voted on on 1st September. That vote has been postponed and new changes have been made. Let's wait the real thing, before commenting any further.

We're hardly out of the woods yet...

[Serious Simon]

Good to see that protests and petitions can make a difference

Unfortunately, that remains to be seen.

First of all, as far as I know a vote is necessary to determine if these amendments make it into the directive.

Even so, most of these amendments are just polishing language. They do not really change the character of the directive proposal, in that it allows software patents (in contradiction to what it says in the explanatory part that it intends to clarify the existing European Patent Convention, and not to replace it. The EPC explicitly prohibits software patents).

A big problem is the definition of the term "technical". It can easily be argued that the use of a certain algorithm e.g. to improve software performance is "technical" and can be patented even if the algorithm itself cannot be patented. Hopefully the following amendment will be included in the final directive:

The use of natural forces to control physical effects beyond the digital representation of information belongs to a technical field. The processing, handling, and presentation of information do not belong to a technical field, even where technical devices are employed for such purposes.

The following amendment:

Member States shall ensure that wherever the use of a patented technique is needed for the sole purpose of ensuring conversion of the conventions used in two different computer systems or network so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement.

looks promising, but it would still allow the abominable GIF patent as a conversion when it is not specifically used for data exchange between computer systems.

We can always hope the MEPs will vote for a directive that prohibits patenting of any software (and the process of running such software) that is intended for general purpose computers, such as operating systems, office suites, data base software etc, etc, in line with the existing EPC. However, I am not too confident that this will happen...

Re:Insightful?

[-brazil-]

You may be thinking about patenting processes, ideas, DNA and other rubbish but the EU system isn't as abused or open to abuse as the US.

Actually, it is. Or at least trying very hard to be. The European Patent Office has been issuing software patents for years, even though it isn't allowed to. They can't be enforced yet, but that will change if the directive passes and is implemented.

Furthermore, the quality of the examination of patent application has decreased drastically for some time now.

Has NO ONE read the amendments?

[ciaran_o_riordan]

Slashdot, you should be ashamed of yourself (more than usual).

These are the amendments from the pro-patent camp, the people pushing the directive.

The only good thing in there is the exclusion of Business Method patents. Everything else is just moving words around and generally strengthening the "software innovation = invention" stance. (inventions are patentable).

The vote is on the 24th of this month. No amendments have been adopted yet, that's what the vote is for.

Ciaran O'Riordan