Slashdot Mirror
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!"
Perhaps we should start a hippocratic oath for coders that entails immediate resignation from any employer who attempts to enforce their software patents?
Wow. The lawyers working for software patents are really creative and persistent. They must have spent hundreds of thousands of euros on developing this new strategy, yet anyone could now replicate their legal strategy without compensation. Is this fair? Surely we need legal claim patents to protect the inventors of new legal methods, and to incentivize the creation of them! How can these lawyers work in good conscience on other fields of business when their own creative ideas have so little protection?
"A method for the processing of data recieved in the form of input into information which may be disclosed through output" If they're anything like the USPO I stand a chance.
And they still wonder why the people keep voting NO to giving more power to the EU?
Well, the few of us that are even allowed to vote, that is.
Though...now maybe sending it to MEPs doesn't work anymore. :-/
So..to who should I send it now; the european court?
Anyway, here you go:
The software patents manifesto
Manifesto on the directive of "computer implemented inventions"
Dear MEP,
As you are probably well aware, soon the EU parliament will have a 'second reading' of the directive for allowing patents on "computer implemented inventions", which, as I will show below, actually amount to allowing software patents (swpat), though this is heavily disputed and denied by the proponents of the directive, including the European Commission (EC).
The way in which this directive has gone through the EU Council of ministers is mind boggling and shows exactly how much the EU has a democratic deficit. Despite the fact there was no real majority for the draft any more (the change in vote-weight after the enlargement alone accomplished that, apart from a lot of change of minds of some other countries), despite the fact that stringent motions of national parliaments were passed to oblige the national ministers to redraw the proposal as an A-item so that it may be further discussed, despite the fact that the EU parliament and their JURY-commission asked for a new first (re)reading with almost unanimity, the EC chose to ignore and disregard all this, while giving no explanation, apart from "for institutional reasons as to not create a precedent". In other words, the "common position" had to be followed, even though there was no common position any more, because, apparently, the form is more important then the facts.
This is a stupefying prime example of absurd bureaucratic reasoning and mentality; to give more importance to formality, and to place appearances before the changing facts. Bureaucracy abhors changes, even to the detriment of real democratic values. But then again, maybe this shouldn't surprise us, as the EC is exactly that: bureaucrats, whom were never voted into the position they occupy, yet create laws that could potentially influence millions of EU citizens (to which they do not have to answer to). The EU constitution leaves this democratic deficit as it is, alas. And as seen by the handling of this directive, the deficit is pretty huge.[1]
I will not go further into the procedural mess and the apparent disrespect of the EC for the EU parliament, but rather concentrate on the different aspects of the directive itself (content). I will do this by stating, and then debunking, the rather dubious claims and arguments made by the pro-directive camp, which, alas, also include some misguided MEPs - though I haste myself to say the large majority of the EU parliament is well aware of the facts, as can be readily seen by the amendments made in the first reading.
The following statements for why it is necessary to have the (current) directive is as follows:
1)It is necessary for the stimulation and development of new software, so that IT-companies can be innovative to the fullest of their potential.
2)It is necessary for the stimulation of EU software business, so we can effectively compete on the world-market.
3)It is needed for the harmonisation of the internal market, and to retain the status quo. (Similar as the "we do not change the current practise" or the "it will avoid drifting towards US-style patentability" -argument).
I will now debunk all these arguments (sources mentioned at the end of the document) in a rational and clear way, instead of all the FUD currently being made by many of the softwarepatents (swpat) proponents.
1)It is necessary for the stimulation and development of new software, so that IT-companies can be innovative to the fullest of their potential.
First of all, we have to ask ourselves, what, exactly, a patent is. A lot of pro-swpat advocates use terms as Intellectual Property (IP) rights, while those encompass a lot of different concepts, such as copyright (which is already used for software). We can find the following
--- "To pee or not to pee, that is the question." ---
If software patents are allowed I'm going to have to patent several algorithms I've created just to prevent them being taken and used without recognising my development work.
That will suck. I guess I can always dedicate the patents afterwards, so long as it prevents someone else from trying to make me not use my own work.
I may be over-reacting, hope so, but software patents are a terrible idea.
I am not very familiar with US legislation but here in Yurop courts can't create laws, they can decide only based on existing laws. So if the legislation (in this case: the European Comitee and the European Parliament, and later the national parliaments) don't create those laws, how could they decide anything?
....The patent lobby only has to get lucky once. Once they're in, patents are forever.
My opinion is that we should allow patents on absolutely everything, and simply let the patent trolls cause the entire system to implode on itself.
May the Maths Be with you!
There is no need to resign to support your strongly held views against patents in software.
All you need to do to fight patents very effectively is to ensure that your key ideas are released to the FOSS world as programming "noddies", ie. small example programs that illustrate the concept. Be very sure not to include any company code, nor any business logic.
That establishes the prior art, so that even if a patent is taken out for that idea, eventually your prior art will ensure its demise if a patent claim ever reaches the courts.
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.
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
It also has to cover the risk of failure. Many drugs cost as much to research but then don't pass final approval.
But actually, the above statement is a lie to fool the naive. The reason it costs so much is that they can charge what the hell they like, and once the price goes higher than that, the demand falls.
Patents would be much better if there was some way to force patent holders to licence to anyone for reasonable fees.
I would genuinely be abhorred if this were to actually happen.
Why? Is it your fault?
Whence? Hence. Whither? Thither.
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.
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.
http://www.gnu.org/philosophy/fighting-software-p
http://www.gnu.org/philosophy/savingeurope.html
Stallman: "Imagine that each time you made a software design decision, and especially whenever you used an algorithm that you read in a journal or implemented a feature that users ask for, you took a risk of being sued."
The key difference is that one person can easily create a single software product that sinultaneously contains any number of 'patentable' ideas. This is the opposite of patenting in eg. chemical engineering or pharmaceuticals, which tend to focus on a single complete process or product (such as a compound).
The basic problem with the current European patent law is that it disallows
software patents but is vaguely worded to the point that some courts interpret
it to allow software patents. Thus in Europe today some countries' court
systems allow software patents and some disallow software patents. The pro
software patent lobby is trying to create a single Europe wide court that will
allow software patents all over Europe. The anti software lobby is trying to
block the single Europe wide patent court in an effort to keep software patents
from spreading. Part of the problem with fighting the proposed new court is that
aside from the software patent issue the single Europe wide patent court is
basically a good idea.
I propose that we block the single European patent court as a delaying tactic
only. In the meantime we should lobby to get the European patent laws amended
to where the anti software patent clause explicitly bans software patents in no
uncertain terms. There is a fair bit of support for such amendments among the
members of the European Parliament. Once we get the law amended then we could
enthusiastically support the creation of a unified European patent court
because the new court would disallow software patents all across Europe.
------------------
Steve Stites
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.
Of course, who would object to the principle of rewarding worthwhile investment?
It is the unethical nature of the reward that is the problem.
Think of a king that rewarded the inventor of chess with a hundred slaves and concubines to do with as he would. Perhaps a financial reward would be better than one that involved the enslavement of one's fellow men - irrespective of whether such power is in the king's gift?
Software patents are a reward that consists of impacting the freedom of all other software engineers for a limited period, in order that the unscrupulous patent filer, blighter that he is, can enjoy making hay while his competitors' hands are tied.
Don't you think, for just a moment, that perhaps it's a tad unethical to restrain everyone's right to practice their craft, just because it might possibly encourage some genius who has an algorithm that no-one else has thought of, that this genius isn't even willing to tell anyone else about, to publish that algorithm?
Without software patents, such a genius must demonstrate to his fellow men that he has an amazing algorithm, and why it is so fantastic, and that he is prepared to disclose it to any person, or group of persons, in exchange for a goodly chunk of money. Why on earth can't this chappie be satisfied with money?
And if he can't find anyone who is interested in buying his secret, and yet continues to believe that his secret is amazingly powerful, well, perhaps he jolly well should simply keep it secret. When he has successfully exploited it, people can start offering him money for it.
If the point is, that's it's highly likely that someone else may think of it, well then, it bloody well shouldn't be patentable!
And if the problem is that the idea can't be exploited unless it is disclosed, well, no need for patents to encourage disclosure. The public acclaim would easily be sufficient to tip the balance between keeping a privately unexploitable algorithm secret vs published.
I will not accept the enslavement of my fellow man, nor any imposition upon his liberty, as reward for my ingenuity.
This is about the same thing I said to the FFII: our struggle is too passive; we're just waiting and fending off attempts to get softwarepatents validated.
What we *should* be doing is being more pro-active, and try to get a law passed (or at least proposed) which would unify the patent law (which, on itself, is a good thing), but which explicitly forbids patents on software.
We can never win on the long run, if we only defend, and the megacorps keep attacking: WE have to be pushing forwards with our goal as well, so THEY are in the defense!
--- "To pee or not to pee, that is the question." ---