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!"

Comments

That's ingenious!

[Anonymous Coward]

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?

My first EU software patent

[a4r6]

"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.

Time to dust off my software patent directive!

[N3wsByt3]

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

Re:Won't work

[Anonymous Coward]

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?

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".

Alternative approach for ethical coders

[Morgaine]

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.

Re:And they still wonder?

[sepluv]

The main point of the EU is to ensure that trade rules (e.g.: patent rules) don't differ between the member states so there can be an efficient common market. Not having lots of different complicated legal systems is probably a good thing (whatever the system is), and, whatsmore, most of the EU institutions (e.g.: the parliament; most member states) went against software patents in the end. The unaccountable EPO (who are more like a Quango full of civil servants than a democratic government or parliament) won't give up though.

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).