Software Patent Debate Over in Europe For Now?

Anonymous EPA writes "The website of the European Patent Office is running a story about a recent agreement not to revive the debate on software patents in Europe nor to promote new legislation. To quote: 'All speakers welcomed unequivocally the opportunity to discuss the issue at a high level and made clear that a new CII (computer-implemented inventions) debate followed by legal modifications was neither necessary nor desirable.'"

Comments

Disarming the patent trolls

[Anonymous Coward]

Donald Knuth makes a far more eloquent and measured opposition to software patents than anyone else I have read on the matter. His argument is
not merely that they are a debasement of science and culture and an attempt to allow the patenting of mathematical process itself, but that they are unworkable in practice. No programmer can ever write a single line of code if they must spend time looking over their shoulder and hoping to know which methods are patented and which are not. It's simply impossible. And no PHB is going to stand behind each and every coder checking their work against a list of allowable statements and algorithms. It just won't work in practice because the PHBs are universally clueless about code, which is why they hire programmers in the first place. And do you think anybody is going to come down from the legal department and oversee the programming? Be real! And even more to the point, since most commercial code is closed source, whoever is going to disassemble and study every piece of code and be able to prove that it infringes? There aren't even enough technically qualified judges to hear the cases so decicions are arbitary insomuch as they allow the courts to save face and appear to know what they are doing. It's a complete and utter unworkable disaster from end to end.

This gives us the power, and in no small measure. Ultimately the best defence against software patents is for us not to recognise them. If every ordinary programmer (that's you and me) states clearly to a colleagues and any potential employer as a simple unbiased, unemotional matter of fact, that they do not recognise software patents the whole fucking evil game is tumbled. Nobody can force you to do the research...and nobody can afford to idemnify you against not doing the research... because no software engineering project is tenable under those conditions. Who is going to stand there and scrutinise every line of code you write? Nobody, nobody can. Try even finding people who are of sufficient skill to read through stacks of patents written in pseudo legalese and at the same time understand the code implications enough to direct a team of programmers, you won't find many.

What we need to understand is that software patents are like fairies or psychosomatic illness, they only exist to the extent you allow them to, by recognising their legitimacy. If programmers elect to not recognise software patents they will cease to exist. Just add one line to the bottom of your resume...

"I do not recognise the validity of sofware patents"

I don't beleive there's a programmer on this planet who actually supports the idea (unless they're one of the crooked ones who is already making a fortune out of patents). There are almost no legitimate (read useful) businesses that support them either. The big guys unwittingly got into an arms race that even they admit is wholly destructive and counterproductive. Given a chance the major corporations would sink software patents just to be rid of them but since they are locked in a stand-off of mutually assured destruction nobody wants to be the first to put down their weapons. The situation only persists because of money grubbing lawyers who throw fuel on the fires of conflict for their own profit. I don't believe there are many bosses or recruiters out there that care for them either, I've never heard any manager or project leader talk about them as anything but an absurd and time consuming obstacle to development. They are uniquely anti social(ist), anti-capitalist and anti-progressive.

Nobody with an iota of sanity likes or supports the idea. So who are the those who support them? No more than a very small and very vocal minority of opportunist patent troll companies who will hopefully die very quickly once their oxygen and food are cut off.

As programmers YOU have the power to bury this obscene squandering of human endeavour. Next time someone mentions software patents to you just laugh and say that nobody who is serious recognises them and that you won't tak

I spoke at this conference...

[pieterh]

The EPO is half right but it's important to understand where the situation is in Europe. The EPO grants more software patents than ever, but uses mystical jargon to disguise these so that it can claim, with a straight face, "Software cannot be patented in Europe". One of the speakers at the conference, Mr Beresford, a patent attorney, wrote a book called "How to patent software under the European Patent Convention" (since it is, strictly speaking, not allowed).

Those who want software patents and business method patents are: the patent industry, and specific software firms like Microsoft and SAP, and some consumer tech firms like Philips. The EPO is in a bind because the explosion of demand for software patents is destroying it from the inside: internal strife over the money is now breaking the EPO apart little by little.

Politically, there is a big fight between the EPO and the EU over who controls the patent system. The EU wants a Community Patent and the EPO (esp. Switzerland) has been sabotaging this because it means the end of a good business. The pro-swpat lobby has been trying to get software patents in via the back door through an EPO plan called "EPLA", but this is failing because of the EU vs. EPO fight. The UK courts meanwhile are rolling back patent law to discard pure software patents (which annoyed Mr Beresford immensely). Within the EPO, national patent interests try to weaken the EPO's management, and try to inflate the patent system so they can pump more money out of it. The EPO management gets all the flak, and lobbies hard to make friends in Brussels. MEPs are still sensitive from the Software Patent Directive, especially those who lost.

It is intensely political, and almost the only thing all parties can agree on is that it's not the right time to attack the question of software patents again. That is basically what came out of the conference.

However - this is not a closed matter. IBM recently came out on the side of the FFII (my association) with a proposal that calls for a "European Interoperability Patent", which basically is a patent that does not damage open standards and (maybe) open source. The EIP is immature and just one idea among many but it's part of IBM's realignment with the FOSS economy, and away from the old industrial economy that so loves patents.

And when IBM moves, the patent world follows.

What was most interesting from the EPO conference, and what is missing from their report, is the way the EPO is getting ready for change. With a new president - Alison Brimelow - and a huge set of problems to deal with, there is a good chance that the old EPO, which sold patents as the cure for everything will start to become a kinder, gentler kind of parasite.

Of course, the FFII, which fought against software patents from 1999 to 2005, is still here, and growing stronger. The question of how to stop the patent system from destroying the FOSS economy is still there and it will come back onto the agenda in a big way, when the time is right.

Re:I spoke at this conference...

[Husgaard]

If you need real information on the state of software patents in Europe, without the lies and half-thruths we see from the patent establishment and some politicians, FFII is the place to go. These are the people who have done most of the hard work to avoid software patents in Europe.

We still have problems with software patents in Europe. The main problem is that the European Patent Office (EPO) is still issuing of thousands of software patents, although the European Patent Convention (EPC) clearly and explicitly states that software as such is not patentable. But EPO has reinterpreted EPC several times over the years, and now their interpretation basically is: "If the software works it is no longer software as such, and can thus be patented."

So now we have tens of thousands of software patents that have been issued by EPO. These software patents are illegal according the the law, and if a patent holder tries to assert such a patent in a court of law, it will be ruled invalid. This creates political pressure from the patent holders to get their patents legalized. And of course the EPO wants to have the text of the EPC changed so it fits their perverted "interpretation".

EPO has twice called for a diplomatic conference where they asked for this change in EPC. Both times their request was denied. A diplomatic conference is the only proper way to change EPC, as this treaty is not an EU treaty.

When that failed, they tried lobbying the EU to create law that would force all EU member states to change their patent laws to legalize software patents. This was the infamous CII directive, and was voted down by the EU parliament in the second reading.

When trying to force the EU member states to change their patent laws failed, they tried another backdoor. This was the EPLA. Basically this was meant to be a new specialized european patent court, with judges appointed by the EPO. This new court was meant to be above all other courts, including the European Court of Justice and the supreme courts of all the member countries. The idea was that the EPO could then make their "interpretation" of EPC case law. Fortunately this is off the table (for now).

But the pressure to legalize software patents is still there, and the EPO is still issuing illegal software patents. Even the EU Commission (who have been on the side of EPO since a few years before the CII directive was proposed) has had to acknowledge that EPO is outside any political or administrative control. And the EPO has nothing to fear, as they are above the law. (Really: If an EPO employee commits a murder, he cannot be prosecuted unless the EPO accepts it.)