Slashdot Mirror
EU Patent Examiners Warn Parliament Will Have "No Power"
zoobab writes "The Staff Union of the European Patent Organisation sent a letter to the President of the European Parliament, warning that after the EU accedes to the European Patent Convention, there is a risk that the European Parliament would be 'circumvented' as a legislator. The European Patent Organisation is in no way a model of democracy: national patent offices are in power, there is no parliament involved in the decision-making process, and diplomatic conferences are held behind closed doors. There are plans to create a central patent court in Europe, which would operate in a democratic vacuum, not counterbalanced by any legislative assembly, in particular not the European Parliament. Such a central patent court could also validate software patents via caselaw (as the German Supreme Court recently did with the Microsoft FAT patent). And Microsoft, IBM, and SAP are lobbying in Brussels not to reopen consideration of the software patent directive."
The United Patent Litigation System replaces the EPLA. The official justifications are that it will decrease bureaucracy and costs. As a side effect (which is the real motivation of some pushers), it will push aside the European Parliament (which threw out swpats in 2005), and give more power to the European Patent Office (which approves almost as much as the USPTO does). More details:
Expert in software patents or patent law? Contribute to the ESP wiki!
Here they are again pushing their agenda.
This will not end until we start using the guillotine again.
The pursuit of software patents is teh pursuit of fraud and public deception.
abstraction physics application (including software)is a human right and duty.
Beware of software patent pursuers bearing gifts.
the equivalent would have been in medieval times the monks to block the printing press after they realized that not only bibles can be printed!
Oh my God I hate these lobbyists and IP-lords!
It's probably easy to figure out where I personally stand, given that I founded and ran the European NoSoftwarePatents campaign and that I also opposed the original proposal named EPLA (European Patent Litigation Agreement). Nevertheless I tried my best to give both sides of the argument fair and accurate representation of their statements and views on my blog.
There are indeed reasons to be concerned about a drift toward software patents in Europe, not only at the legislative level but also in terms of judicial decisions. In the past, the highest German court in such matters applied tough tests such as the controllable-forces-of-nature criterion to distinguish software patent applications from technical inventions. However, a few weeks ago it upheld one of Microsoft's FAT patents, as this slashdot article also mentions. As I explained on my blog, this could be but need not be a "FATal patent ruling". The detailed decision must be analyzed once available in order to understand whether the ruling related to the question of patentable subject matter. It's possible that it was only about inventiveness/prior art, given that the relevant court is an appeals court to which typically only certain (but very rarely all) aspects of a case are referred. In that case, the appeals court would not have been allowed to comment on non-referred issues (no matter how striking those might have been). Patent attorneys in Europe often try not to raise the question of patentable subject matter in their appeals because they would bite the hand that feeds them if they achieved rulings restricting the scope of patentable subject matter. They generally prefer to make invalidation cases on such grounds as "not inventive [as compared to prior art]", "not new [due to prior art]", "not sufficiently disclosed".
Another example of software patents that are already (unfortunately) quite enforceable in Europe are multimedia codec patents, such as MP3 and MP4 patents. It's become an annual ritual at CeBIT that dozens of confiscations of "pirated product", of which MP3 players are probably the largest group, take place on the first day of the show. I mentioned this in a recent blog post on multimedia patents.
I thought that the general idea of Europe was to give no power to the people?
Already, the majority of the laws come from a group of people that we never elected. The Lissabon treaty was pushed through despite referenda in several countries speaking out against it: worse than a dictatorship, at least a dictator does not ask the people what they want before doing something unpopular.
In the light of recent developments in Europe, this article does not surprise me.
BTW : good info -
While I appreaciate the links and information. I even more appreaciate the fact that someone finally said what as needed (and was heard).
As a patentholder (no, hardware, not software), I can vouch for the fact that a centralized european patent office is sorely needed. Currently, getting a patent in all of europe depends on first finding a patent office that WILL grant you the patent (which can be hard because most of 'em sit on their arse saying; "Ee dont under stand this technology, it's new to us". Yeah morons, ofcourse it's new, otherwise I wouldn't be patenting it, now would I ?), and then running around to every OTHER patent office in europe and saying "But THEY already gave me the patent rights".
And this is not only difficult, but also expensive and an entry barrier for new technology movers and inventors.
--- To err is human... Am I more human than most ?
This situation is simply patent backers designing a system a nameless faceless politician can sign into law and keep his job.
Democracy in name for the sake of the wealthy.
For those who are interested in what kinds of initiatives the EU is planning to take in connection with intellectual property rights beyond that new patent and patent court system, here's a summary of a speech by the Commission official driving the "patent reform" effort. Keywords: data retention, ACTA, Digital Agenda, aftermath of Microsoft case, Google Street View, open standards, open content, criminal prosecution of IPR infringers, trademarks, AdWords.
I have spent a fair amount of time in Brussels in recent years, starting with my campaign against software patents in Europe. While I understand what you mean to say with your criticism, I would disagree that the EU is inherently undemocratic, let alone antidemocratic.
The EU is a complex construct: it's neither a federation such as the United States or Germany nor an international organization such as the World Trade Organization. It's an in-between, it's a supranational alliance of countries, and that entails a setup in which the national governments of the EU Member States still wield a lot of power. Otherwise we would have (for better or worse, which is not the question) a system more similar to that of the United States, in which the sovereignty of each state is very limited compared to that of an EU Member State.
The original idea of a united Europe was a peace project. It was not about liberalizing markets, although even that is not necessarily against the interests of citizens. As someone who travels a lot in Europe, I can see some of the benefits that the EU has brought to citizens, such as the cap on mobile phone roaming charges that the EU imposed a few years ago.
The complexity of the EU's structures has the effect that only a limited number of people even understand how decisions are taken. There's probably just a minority of US citizens who know exactly all of the procedural possibilities concerning conciliation between the Senate and the House (such as the "deemed passed" principle that the Democrats were considering at some point to push the healthcare bill through), but at least people in the US will know their senators and probably also their congressmen (for their constituencies). Here in Europe, people generally don't know their MEPs (Members of the European Parliament). The media don't report because Brussels seems so remote, processes are complicated and time-consuming, and even when a legislative decision is taken, it usually takes time before it gets implemented by the Member States (enshrined in national laws) -- two years is the standard period that EU directives allow for that purpose. Most of the problems that people criticize when talking about the EU's "democratic deficit" could be solved by the Fourth Estate (the media), but there's a chicken-and-egg problem because citizens don't know about "Brussels" for lack of media coverage and the media don't report much for lack of interest by their audiences.
I also think one has to acknowledge in all fairness that the European Parliament's powers have been significantly enhanced by the Lisbon Treaty. I can understand if people say it was not enough, but there has certainly been progress, with now pretty much all decisions requiring the support of the Parliament (either through co-decision or assent procedures).
Or to put it politely;
Originality is the art of concealing one's sources.
"The distinction between creation and discovery is not clear cut or rigorous.Nor is it clear why such a distinction, even if clear, is ethically relevant in defining property rights. No one creates matter; they just manipulate and grapple with it according to physical laws. In this sense, no one really creates anything. They merely re arrange matter into new arrangements and patterns. An engineer who invents a new mousetrap has rearranged existing parts to provide a function not previously performed. Others who learn of this new arrangement can now also make an improved mousetrap. Yet the mousetrap merely follows laws of nature. The inventor did not invent the matter out of which the mousetrap is made, nor the facts and laws exploited to make it work.
Similarly, Einstein's "discovery" of the relation E=mc2, once known by others, allows them to manipulate matter in a more efficient way. Without Einstein's, or the inventor's, efforts, others would have been ignorant of certain causal laws, of ways matter can be manipulated and utilized. Both the inventor and the theoretical scientist engage in creative mental effort to produce useful, new ideas. Yet one is rewarded, and the other is not".(Kinsella, Stephan. "Against Intellectual Property").
"Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property".
--Thomas Jefferson, to Isaac McPherson 13 Aug. 1813 Writings 13:333--35
"Kill 'em all and let Root sort 'em out"
It's like the Federal Reserve all over again.
Its really simple, nobody wants to deal with the matter for the honesty of the matter.
Neither Proprietary patent supporting parties nor open source patent free parties.
Why is also simple. The honesty of the matter of software would result in not only no software patents but also in genuinely free software, free in the since of making it possible for anyone to create software.
Current software development methodologies are like the roman numeral system in mathematics, where it takes specialization and trade secrets to do any complex math. But then came along the Hindu-Arabic decimal system that enabled the population to do math even beyond the experts. And the experts probably argued that only a fool would think nothing can have value (the zero place holder), as today the coding experts claim the user is not interested in creating programs. Where the fact is that users just don't want it to be a full time job requiring years of schooling and/or heavy personal pursuit. They just want to create or modify occasionally, no different than occasionally using math or a calculator to determine a result.
But the current software development methodologies do not support "occasionally". And the unnecessary level of overcomplexifabulocation in software development is the "only a fool would want to do it occasionally" false defense.
Help Prove Software is not Patentable and end this matter once and for all, and it is provable, otherwise you are playing othello, reversi.
And anyone who has been following this software patent battle damn well knows this othello, reversi game well, even if only as a spectator.
the Organisation for Zpelling?
1. Design crippled file system (8.3 filenames)
2. "Invent" "ingenious" fix that fixes the aforementioned flaw somewhat (long filenames)
3. Patent & license. Win.
No "???" here. Only "WTF" and where is our society heading?
anything that Eu does now have to be approved by the Eu parliament. If parl doesnt approve it, it cant happen.
Read radical news here
> The EU threw out patents on software /per se/
What makes you say that? The background was that the legislation excludes "swpats as such", and the EPO interprets so narrowly to be almost non-existant. The story with the EU is that the Commission proposed to clearly allow software patents, and it was discussed at great volume levels for a few years, and the Parliament threw out the Commission's proposal almost unanimously.
This means there was no change in the legislation, so were back to the crappy situation where the EPO is granting whatever it likes, but it's still true that the Parliament's action was to throw out a proposal to legitimatise software patents. Here's the story at greater length:
Expert in software patents or patent law? Contribute to the ESP wiki!
4. Profit!
Atleast microsoft got the whole bussiness thing right ;)
You asked "How can it happen?" Here's why: the proposed United Patent Litigation System is based on a system of international treaties, and those would transcend the geographic boundaries of the EU.
Today that's already the case to some extent, with the European Patent Office not being an EU institution but an international organization in its own right, governed by the European Patent Convention (EPC). The EPC is a treaty that has more countries as parties to itself (the treaty) than the EU has Member States. Examples of non-EU EPC countries include (but are not limited to) Switzerland, Turkey, Norway, Monaco... but right now there's still the supremacy of EU law in the 27 EU Member States, while it's rather unclear to what extent EU law could still affect the reformed and united EU + non-EU patent and patent court system.
Where you're sort of right is that if the European Parliament wanted to block that whole reform altogether, it could theoretically do so. Since that reform is a system of five treaties, all of which are in a logical AND combination (any one fails, the whole package deal falls through), the Parliament could jettison the whole reform by just voting, for an example, against the EU law that would be needed to create a so-called Community patent, or by voting against the treaty establishing the United Patent Litigation System (for international treaties that the EU joins as a virtual country, the European Parliament's assent by a qualified majority of its members is required, so the Parliament could block by withholding that assent).
And that's exactly why the patent examiners' union wrote the letter to the European Parliament that gave rise to this slashdot story: they apparently hope that the European Parliament would use its powers to influence the content of the legislation.
No, no, it isn't a general validation of software patents. The German legal system follows Civil Law, not Common Law. That is, the results of previous court cases are not binding on later cases. A subsequent court is bound only to follow statutory law, and has no obligation to take into consideration previous case law. This is quite different to the Common Law of the British tradition, where case law does indeed set a binding precent that affects later rulings.
What you don't say here is that rulings by the court that ruled on the FAT patent (the Bundesgerichtshof, which is the highest German court in all matters of civil and criminal law, above which there's only a Federal Constitutional Court, which wouldn't heart a patent case) are definitely binding, especially if a part of the ruling is defined as a "Leitsatz" ("guiding ruling"). All lower courts -- which means all courts in the country except for the aforementioned constitutional court -- have to follow those decisions. That's something you didn't mention, and it's important in this case.
I pointed out that liberalization, which is what the EU is now mostly known for, was not the original number one priority.
I generally like the idea of a large European market and it's good if the EU opens up markets that its Member States are sometimes hesitant to liberalize/deregulate.
What you are saying is, the FAT-patent can still be challenged at a Constitutional Court?
I had said that only the Federal Constitutional Court is above the Bundesgerichtshof, the court that ruled on the FAT patent, but I also said that the Constitutional Court doesn't hear patent cases. I had a typo in my post ("heart" instead of "hear") but the message was clear.
Very theoretically, the Constitutional Court could look into patent law if someone's fundamental rights were violated by the law. With the question of whether or not software should be patented, that's extremely hard to imagine, which is why I would say the answer to your question is 99.99% No, if not higher than that. And there certainly isn't a direct appeal mechanism in place.
On my FOSS Patents blog, I have published a report juxtaposing what the EU official said with the FFII's criticism [blogspot.com].
The FFII and the European Union are institutions I admire. You are very opinionated as an activist about patents but only strong political organisations like these may keep a patent office accountable. Patent reform is high on their agenda, blogger activism is not enough. We need to support them (donate to FFII) , support their agenda in any possible way. Without the EU there would still be wars in Europe.
The small guy already lost. The big company whips out a much larger patent portfolio and "cross licenses" for nothing the product. Or the small guy is gulled by a patent troll and can't even afford the court appearance.
I don't get why MP3 patents are enforceable. If it was special hardware they are running on, I would understand it, but - for example -the Sandisk Sansa players, which were confiscated at Cebit some years ago and one of which I incidentally own, are generic hardware, simple MP3 decoding on the ARM CPUs of the player, no DSP or custom chip support. If that is enforceable, everything is. Or where is the difference to other software?
No, it's taking what Jefferson said. Jefferson said that he had serious doubts about the utility of patents. This is not naive or misleading, it's reporting what the man said!
Elektroschock wrote:
The FFII generally referred to them, as I wrote on my blog, as "the patent movement", meaning national government officials whose careers are tightly linked to the patent system.
Hurga wrote:
Your question is right on. MP3 patents are pure software patents: compression algorithms and some of the patents don't even define a particular compression algorithm but just methods for how to organize compression (such as an iterative approach: compressing with increasing lossiness factors until the result fits into an allotted amount of memory.
In a software-patent-free world, MP3 would not be patentable either. However, substantive patent law is a complex and tricky field and differences can be subtle, resulting in one patent being upheld by a court and a seemingly similar one being thrown out. Sometimes the difference is just in how the patent application is worded. Some attorneys do a better job of presenting their patents as "technical inventions" than others.
As I see it, a "Leitsatz"-judgement indeed technically has to be followed by lower courts, but they still can actually rule to the contrary, opening up the way to higher instances until the issue reaches the BGH again. Certain judges on certain OLGs (state courts, roughly) seem to have it made a hobby ruling against the established guidelines from the BPatG (patent court) and sometimes BGH lately in patent matters. If you follow the guidelines issued by the BGH on software patents, their opinion seems to change quite rapidly from time to time.
Ubi solitudinem faciunt, pacem appellant.
"European Parliament would be 'circumvented' as a legislator."
They are no legislators today, and propably never will be, how can they be circumvented? The European parliament is just a front without real power, they have never even been claimed to have any legislative power, not even by EUs supporters. Nobody can be sure who has the real power in any given situation. The counsil of ministers seem to have some power, sometimes, but their power of vote are not democraticaly distributed. Most power seem to be in the hands of beaurocrats, those beaurocrats are however appointed by politicians, not necesserely politians elected by the people, but by politicians appointed as representatives by other politicians elected to Europes national assemblies and gouvernments (and again, the power they get is not proportional to the public support they have within the whole of Europe). Another group of people, with at least some influence, are the coordinators within the intrernational party groups within the parliament, they are at least democratically elected (but their power is, as usual, not proportional to their public support).
EU is not a democratic organisation, and propably never will be, that was not part of the original goal. Sure, some politicians claim it will be (or even that it already is, but that is obviously not true). Why would you belive anything professional politicians or beaurocrats say, they have their whole adult lifes been paid for being politicians and beaurocrats, they don't want Democracy, all they want is a pay rise and a comfy life.
Looking at this, every some time we get a new threat against democracy. The corporations whom have bought or pressured politicians into giving up our rights so that politicians can get their champagne feasts and more political power. The most dangerous enemies of our democracies are not outside of our countries, its not those whom the politicians are pointing their fingers at, it is the greedy corporations and their enablers the politicians.
A central government with no de facto legislative authority? Sounds good to me -- where do I sign up?
From California with love,
N.a.J.