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EU Patent Wars to Resume
replicant108 writes "Ciaran O'Riordan of the FSFE gives a concise analysis of why the EU Software Patent Wars will resume this winter. Apparently the pro-patent side have changed their strategy — this time they plan to bypass the legislative powers and target the judiciary instead. The goal is to transfer power from the national courts (which often rule against software patents) to a specially-created European Patent Court which will be controlled by the pro-software patent EPO!"
Those laws dont' do anything on their own though. Someone has to act upon them. First the executive arm of government and then the judiciary (if it reaches them) apply their interpretation to that law.
The EPO currently "interprets" Article 52 of the European Patent Convention, which states that only inventions are patentable and that programs for computers shall not be regarded as inventions, as meaning that programs for computers are in fact patentable. If they controlled the courts, they would have total power to enforce this "interpretation".
The law is irrelevant if the court chooses to intepret "black" as "white".
I'm not, in favour, generally, of extension of the the powers of EU instutions or the proposed EU constitution. However, surely if your state were to drop out of the EU, these trade deals would still happen but in an untransparent, unaccountable way with no parliament or constitution involved (and more likely to involve the receipt of nice pretty brown envelopes from everyone's favourite monopoly).
Joe Llywelyn Griffith Blakesley
[This post is in the public domain (copyright-free) unless otherwise stated]
"Small national governments are easier to buy."
I doubt that, european laws are more effected by lobyists then our national (dutch) law.
The same is true of the US. However, in the early eighties, a group of largely right wing and semi-moderate justices on the Supreme Court, for some bizarre reason, decided that current patent laws as passed by Congress and as enforced by the USPTO, were too strict in terms of the types of things they allowed to be patented, and explicitly allowed a software patent (a method implemented by software on a factory controller.)
Congress, unfortunately, decided to wash its hands off the matter and promptly passed the responsibility for policy making in patents to the new Federal Circuit court system.
In fairness to Congress at that point, I don't think anyone realized either how much damage would be done by software patents, nor how absurd the concept is in general. Whether that would be the same with the EU court is open to debate, but while we have a better understanding today, we also have to face the fact that many companies know how to abuse the system, and they are aggressively lobbying for those very patents. So if a similar scenario arises, there's little guarantee the EU would actually pass laws to clarify the law in an anti-patent way.
You are not alone. This is not normal. None of this is normal.
In my opinion, it would be better to say: "(to whom they are not accountable)"
I'll explain why.
"To whom" vs. "to which": Most of the time, when you're refering back to a person or to a group of people, you should use "to whom". "To which" is used mainly used for objects, or animals. It's like the word "it". A rule of thumb: If you wouldn't use "it" as a pronoun, you shouldn't use "which".
"Have to answer to" vs. "accountable": Both are correct, but using "accountable" doesn't require as many words. The sentence is a bit simpler and more elegant, IMO.
The dangling "to" at the end: The "to" at the end was redundant. The "to" in "answer to" got moved to the beginning--"answer to" got split up into "to whom...answer". In other words, you're changing
"They do not have to answer to the citizens"
into
"citizens (to which they do not have to answer)"
Does that make sense?
The drug companies need to recover enough money to support all their research -- including trials of the many compounds that just don't work out. And they also need to self-insure against liability should one of their products kill or maim a bunch of folks even after all the testing. Of course, the companies also make obscene profits and it wouldn't bother me or a lot other people much, if that particular brand of obscenity were substantially moderated.
But the system -- bad though it is -- works after a fashion and this is a case (and the only one I can think of) where simply closing all the world's patent offices, voiding all existing patents, and retraining all the patent lawyers as garbage collectors will not make the world a better place. Yes, we pay way too much for drugs until the patents expire. But in this one case, the patent-mongers are probably right. No patents, no new non-recreational drugs.
You can't see ANYTHING from a car, You've got to get out of the goddamned contraption and walk...Edward Abbey
In the current atmosphere of funding cuts to universities and researchers, they are looking for ways to monetize their 'intellectual property'. That means that data is jealously guarded and things aren't published the same way they used to be. The result is a lot of duplication of effort and a general slowing down of science. In that regard, patents are having an adverse effect on human progress. We got to where we are because scientists shared their findings after all.
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Bill Gates realizes that secrecy among scientists is slowing down aids research. As a condition for his funding of their aids research, he is insisting that they share their data. http://www.guardian.co.uk/aids/story/0,,1824606,0
In general, patents are being abused and are not fulfilling their original purpose. The people lobbying for patent protection for software are actually evil. They want to enrich a certain group of people at the expense of the rest of the world. When you see someone like Bill Gates acknowledging that, you know it has to be true.
And if a company fires you for publishing your ideas in this way, well, it's not really the company that you wanted to work for in the first place.
Undermining your employer's patents is the kind of thing you're going to want to do anonymously in the first place. They're not stupid, and someone who does this to them is going to have a hard time finding employment if they know about it.
Since you're "liberating" the patent "technology" (and I use that term loosely), if you have to put a name behind it for legal reasons (for example, if linuxg4mer6969 doesn't count as an prior user of what's described in the patent), then give the reconstructed code to someone else to claim credit for it.
Apology to Ubuntu forum.
The FSF Europe's Ciaran O'Riordan wrote in his article about the role of the European Parliament:
in the EPLA they have no influence
That is not necessarily correct. The first procedural question to be clarified concerning the EPLA is whether any of the 25 (soon to be 27) member states of the European Union are allowed to ratify it on their own. The European Commission's legal services say that the EPLA can only be concluded by EU member states as a so-called mixed agreement, which means that the EU (or in legal terms, the European Community, but to most people that's the same anyway) would have to become a virtual contracting state to the EPLA.
I have already predicted in my blog that the European Commission is going to ask the European Court of Justice (ECJ) for an opinion on this question. They're not going to take their chances and create a court that might later be illegal from an EU perspective (with the effect that all of its rulings would be invalidated overnight).
If the ECJ were to support the opinion of the European Commission's legal services, the immediate follow-on question from our perspective is whether the European Parliament, which is the most important bastion of balanced patent policy in Europe, is going to have a decisive role or whether it's just going to be consulted (in which case its opinion could be ignored). I already discussed this question with specialists of the European Commission more than five months ago, and they said that the EPLA would require modifications to certain parts of the existing EU law (the so-called "acquis communautaire") that are subject to the codecision procedure. The codecision procedure is the one under which the parliament has more influence in the EU than under any other procedure. My book No Lobbyists As Such - The War over Software Patents in the European Union discusses in detail the way the codecision procedure works: it's the procedural framework under which the software patent directive got rejected.
Therefore, it's little surprise that certain die-hard proponents of the EPLA take the position that the EPLA can be ratified by any European country, including any member state of the EU, without EU involvement, while we (the anti-software patent camp) very much hope that the European Parliament is going to be needed.
"Liberating patent technologies" is pretty non-ethical and can be classfied as the inappropriation of trade secret, and I highly advice against anyone to do so - returning vice with vice shouldn't be how things work.
However, it's an entirely different matter if the idea originates from you - *instead of* giving the idea to the company in the first place and publish to OSS - just keep your mouth shut about your idea until you're at home.
This way it'll make it both ethical and legal.
Article 52 of the European Patent Convention says that "programs for computers" shall not be regarded as inventions, "only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such".
So, if the crucial inventive step is merely that something is being implemented as a computer program, it cannot be patented. The subject matter of the patent must be more than merely, "hey, it's now being done on a computer".
But, if the patent involved a software program that did some technical job in a novel way, so long as the novelty did not lie only or primarily in it being a software program as such, then it could be patented. As I understand it, this is the stance of the EPO and is in accordance with the European Patent Convention.
The drug companies need to recover enough money to support all their research -- including trials of the many compounds that just don't work out. And they also need to self-insure against liability should one of their products kill or maim a bunch of folks even after all the testing.
Drug companies need to recover enough money to support all of their marketing. Research budgets at drug majors are always considerably smaller than marketing budgets.
Blasphemy is a human right. Blasphemophobia kills.
You understand correctly, however stance and practice are different so your post could be misleading ;-)
The following email contains snippets from earlier EPO rulings involving art52. These rulings are clear and consistant.
Now for the EPO's current practice:
The EPO have become a joke!
Every person has the right to self-determination. The EU enshrines that right in, among other things, its collective adherence to the Convention for the Protection of Human Rights and Fundamental Freedoms.
If by "its members" you mean the 25 member-states, then I think that would be a good idea purely on the grounds of subsidiarity, starting with the most obvious nation-states like Belgium, Spain, the United Kingdom, and Sweden. Article 9 of the Treaty establishing a Constitution for Europe (TCE) explicitly extends the principle of subsidiarity downwards to the regional and local level. Two important criteria are also affirmed therein:
* Decisions should be taken as closely as possible to the citizen
* The action should secure greater freedoms for the individual
TCE moreover is another move towards an ever-closer union of individuals rather than member-states. This runs contrary to the goals of some of the governments-of-the-day in a few member-states, and a much larger number of opposition parties, but it broadly reflects the evolutionary trend of the EU over the past 20 years.
In short, if the EU strips member-states' national governments of their powers in favour of a federal system enshrining direct representation, the close-to-the-citizen principle, and the autonomy principle, I'm all for it. That this will anger many nationalists, particularly those who want to impose their vision of their culture and society and their "people" on unwilling fellow citizens, makes me very happy indeed.
Some industry insiders' views on software patents as well as links to several interesting papers can be found in the blog of Sun's Simon Phipps.