The Social Democrat bloc is very split, even country by country.
The French newspaper Liberation has an interview this morning with Michel Rocard MEP, who wrote the opinion of the CULT committee, and is firmly anti-swpat.
A former prime minister of France, Rocard is one of the most senior and influential figures in the Social Democrat group, and his words probably speak for quite a following amongst their MEPs.
Michel Rocard s'oppose à la brevetabilité des logiciels:
Tout le monde se copie et c'est bien ainsi
Par Florent LATRIVE et Laurent MAURIAC
lundi 30 juin 2003
Il faut préserver une civilisation où la part du non-marchand et des savoirs humains est respectée.
On ne trouve pas d'ordinateur sur le bureau parisien de Michel Rocard. Il l'admet volontiers : il n'est pas de la génération qui a une pratique facile de l'ordinateur. Président de la Commission de la culture au Parlement européen, il a pourtant dû se plonger, avec un mal fou, dans la brevetabilité des logiciels, des mots qui étaient pour moi inconnus il y a encore un an. Aujourd'hui, s'il en parle avec autant d'animation, c'est que derrière les aspects techniques se cache un vrai sujet de civilisation. Pour l'ex-Premier ministre, l'introduction de brevets sur les logiciels en Europe serait très grave. Elle remettrait en cause la libre circulation du savoir humain. Jusqu'à présent, les logiciels sont officiellement exclus du champ de la brevetabilité en Europe, tout comme les équations mathématiques ou les recettes de cuisine. Depuis plusieurs mois, un projet de directive très polémique est soumis aux institutions de l'Union européenne et vise à modifier ce régime. Il sera soumis au vote du Parlement européen début septembre.
Pourquoi estimez-vous que l'Europe ne doit pas autoriser les brevets sur les logiciels ?
Depuis la grotte de Lascaux, il n'est pas sûr que l'humanité ait progressé dans ses capacités esthétiques. Quant à ses capacités éthiques et morales, on s'entre-tue toujours autant. En revanche, dans le domaine du savoir technique et de la maîtrise de la nature, les progrès sont foudroyants. La croissance vertigineuse du savoir est la clé de cette histoire. Le savoir s'est répandu par la copie, tout le monde a recopié tout le monde, et c'est bien comme ça. Avec la brevetabilité du logiciel, on change le statut du savoir humain. Tout le commerce intellectuel des produits de l'esprit humain, les moyens de connecter les savoirs passeront de plus en plus par des logiciels. Si on introduit une brevetabilité, c'est-à-dire un coût, une interdiction, on met en place une règle inédite. C'est inquiétant.
Il ne paraît pourtant pas anormal de rémunérer les créateurs et les inventeurs...
Il faut distinguer deux choses : les oeuvres, protégées par le droit d'auteur, et les inventions, protégées par le brevet. Au XIXe siècle, on s'est d'abord intéressé aux premières. On a considéré comme normal de rémunérer les créateurs et de garantir la préservation de l'intégrité de leurs oeuvres. On a ainsi créé le droit d'auteur. Plus tard, on a mis en place le brevet d'invention, soit l'interdiction à quiconque d'utiliser une invention sans payer une redevance. Pendant le XXe siècle, nous n'avions pas de problèmes pour différencier les deux. Contrairement aux oeuvres protégées par le droit d'auteur, l'invention se définit par la mise en jeu de la matière ou des forces de la nature. La conviction que le savoir humain doit circuler impliquait qu'il n'y ait pas de breve
I don't want to object that these aren't fine examples of rudimentary irony, but one could argue that they are mainly sarcastic.
Brewer's Phrase and Fable defines Irony (Gr. eironeia, simulated ingnorance) as
The use of expressions having a meaning different from the ostensible one; a
subtle form of sarcasm understood correctly by the initiated.
According to Bill Bryson, Troublesome Words, the difference is one of intent:
Irony is the use of words to convey a contradiction between the literal and intended meanings. Sarcasm is very like irony except that it is more stinging. Where the primary intent behind irony is to amuse, with sarcasm it is to wound.
Fowler's Modern English Usage offers the following grid:
Word -- province -- motive/aim -- method/means -- audience
Humour -- human nature -- discovery -- observation -- the sympathetic Wit -- words and ideas -- throwing light -- surprise -- the intelligent Satire -- morals and manners -- amendment -- accentuation -- the self satisfied Sarcasm -- faults and foibles -- inflicting pain -- inversion -- victim and bystander Invective -- misconduct -- discredit -- direct statement -- the public Irony -- statement of facts -- exclusiveness -- mystification -- an inner circle Cynicism -- morals -- self justification -- exposure of nakedness -- the respectable The sardonic -- adversity -- self relief -- pessimism -- the self
but apologises:
The constant confusion between sarcasm, satire and irony, as well as that now less common between wit and humour, seems to justify this mechanical device of parallel classification; but it will be of use only to those who wish for help in determining which is the word they really want.
... and that concludes this tour of my bookshelves.
One thing that would help a lot though, would be if the position statement could be amended to read:
It is this respect that we are supporting the positive revisions proposed in Arlene McCarthy's opinion now being considered by the European Parliament for the granting of patents, and positive amendments proposed by other political groups.
Without the text in bold, the statement has unfortunately been used to suggest that you were (and are) calling for a vote against amendments like ITRE-15 on interoperability - which from your comment above you are actually clearly in favour of - and other amendments which were not on Arlene McCarthy's voting list.
The important point, that the journalist didn't realise, was that Mike Banahan was not talking about a consultation run
by the European Commission or the European Parliament, but about a *consultation run by a firm of
lobbyists* who had been hired by a consortium of big business associations. (Remember that OFE's response was paraded not by the Commission, but by this
consortium of associations).
So the real story is
Lobbyists for big business [*not* the European Commission or the European Parliament] are determined to introduce software patents in
Europe despite widespread opposition from European companies and software
developers, according to a UK open-source software lobbying group.
The subsequent paragraphs take on a completely different dimension when you realise they are about the lobbying firm for the business associations, not the European institutions:
Mike Banahan, chief technology officer with OpenForum Europe, a subsidiary
of technology lobbyist InterForum, said the group received clear indications
during a consultation on the proposal that some form of software patenting
would be introduced, regardless of the fact that the consultation showed
heated opposition to such patents.
"We were briefed that a position that was in total opposition to patents
would be discarded, that that was not a position they were prepared to take,"
Banahan said. "The position was, given that there will be software patents,
what kind will there be? It was presented as a done deal."
OpenForum had not intended to submit a position paper on software patents, as it focuses on end user adoption of open-source software, but the group's
opinion was solicited by the organisers of the consultation, Banahan said.
The paper was misinterpreted in the press as supporting software patents, he
added.
The quotes are echoed in this posting to the FSF Europe-UK list:
He stated (as off the record as he could get in a public forum)
his statement on software patents was written from the point of view of -
IF software patents were a done deal (and he was informed that they pretty
much were, by the people asking him for a statement) then there should be
exclusions for Free Software to safeguard the common interests.
He also said (again as completely off-the-record as possible) that he had
been told that any anti-patent statement would be discarded, as many others
had already.
The parliament vote is now expected in the first week of September.
The Socialist group in particular is very divided.
But internal party-group positions are
expected to take shape this week, while the MEPs are all gathered
together in Strasbourg, before they disperse for the long summer recess. It is therefore worth contacting MEPs now, sooner rather than later, to
have maximum effect.
Contact details for UK MEPs can be found by clicking on the map
here
(This information sent to ZDnet on Thursday night, but apparently not of interest).
Government Perspective
It is fully appreciated that the Government may see a benefit in being able to use software it
has funded in as many cases as possible, either by using open source software or by
funding software under an OSS licence that could be used elsewhere.
There are points of caution however. When the Government decides to develop software
using a restrictive licensing base, such as the GNU GPL, they should be aware that this
would prevent it from deriving commercial gain from any subsequent derivative programs
and prevent or severely limit the opportunities to work with commercial companies on such
projects. Also the Government entity should ensure that it engages suppliers who are able
to provide essential maintenance and support for such software. Although initial acquisition
costs may be non-existent, there will ultimately be costs associated with service, support
and maintenance, which need to be considered. Each program would have to be reviewed
on a case-by-case basis to deem its suitability on the basis of quality and total value for
money basis.
Requiring the use of restrictive licences could also cause problems for the Government and
may lead to
1) Lack of adequate competition in the bid process. Would be developers, faced with a
choice between committing resources (i) to bid for and perform an OSS restrictive
licence solution with the disadvantages referred to above and (ii) a more regular
commercial opportunity (including an opportunity to work for a Government body of a
different country) without the OSS requirements would be commercially inclined to
choose the latter. This reduces breadth of choice and the quality of suppliers open
to Government procurement.
2) Software that would not include leading edge developments. Because of the impact
on source code disclosure no developer would be willing to use anything more than
customary techniques in developing the software otherwise it would risk disclosing
its commercial secrets.
3) Very basic software which would only provide minimally useful solutions Ãââoe for the
same reason anything beyond customary and known solutions would not be
constructed
4) Confidentiality issues. There may in some cases be a conflict between the
Government's desire to maintain confidentiality and the requirement to disclose the
software laid down by a restrictive licence, to the extent that the source code itself
discloses attributes about the Government body that are regarded as confidential.
Cost of ownership
From the Government's perspective a further issue is the total cost of a deployment. Apart
from the fact that in the case of a restrictive licence, the developer has only one opportunity
to derive real revenue from its work, and will price accordingly (which compared with a
resalable solution, will offer inferior value for money in many cases). The cost of the
procurement should be viewed not only in the up front costs of the development but also the
cost across the lifetime of the use of the program in maintenance and support. So any
procurement should be made in the light of a full total cost of ownership analysis.
Unlike some national patent offices, the EPO has no outright bar on computer-implemented business methods. This directive will force its interpretation on the rest of Europe.
Although the European Patent Convention (EPC) says that "programs for computers" are not patentable whereas the (draft) Directive explicitly says that "computer-implemented inventions" are (art. 52), there is actually no difference:
The EPC was never meant to prevent patents on computer-implemented inventions; the clause that prevents patent on "computer programmes" simply has no effect -- patent lawyers agree that they are either "technical" (and patentable) or "non-technical" (and not patentable).
Not true.
When written, the EPC's art 52 was seen as clearly excluding computer programs,
provided that the patent application was directed to these objects as such (and not a combination invention, e.g. a chemical process whose input parameters are calculated according to a mathematical formula).
The EPO's Examination Guidelines of 1978 were quite clear on this:
A computer program may take various forms, e.g. an algorithm, a flow-chart or a series of coded instructions which can be recorded on a tape or other machine-readable record-medium, and can be regarded as a particular case of either a mathematical method (see above) or a presentation or information (see below). If the contribution to the known art resides solely in a computer program then the subject matter is not patentable in whatever manner it may be presented in the claims. For example, a claim to a computer characterised by having the particular program stored in its memory or to a process for operating a computer under control of the program would be as objectionable as a claim to the program per se or the program when recorded on magnetic tape.
Until 1986 the EPO's boards of appeal and national courts, except in the UK, firmly rejected any claims to new combinations of generic computing equipment with calculation rules (= computer programs) in whatever form.
Unlike the US patent system, the European patent system only protects "technical" inventions.
McCarthy's amendment 3 (which was passed) starts:
"Accordingly, even though a computer-implemented invention belongs by
virtue of its very nature to a field of technology..."
It is true that McCarthy's amendment 15 states that
"...inventions involving computer programs which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run shall not be patentable."
This reflects the current EPO guidelines. But almost anything which can be presented as identifiably useful counts as a technical contribution, beyond the normal working of the computer.
Thus, as the Iusmentis site summarises, "processing which affects the way in which a computer operates is technical. For example, saving memory, increasing speed, improving security, operating a user interface, configuring the operating system, coordinating and controlling internal data... using computers instead of humans to process secret/private/sensitive data if it would increase security or confidentiality".
According to rulings on EP 0689133, even the "economical use of the resource area on the screen" is technical.
And if that doesn't cover the program, then "processing which is based on considerations of how a computer works is technical". Thus in the Sohei case a patent the EPO Board of Appeal upheld a patent for using the same input form to update two databases, namely an inventory database and a billing database, because it *implied* (but didn't actually limit itself by specifying how to do it) the handling of files containing different types of information, which is technical.
The moral is: if you can't make your new subroutine out to be technical, you need a new patent lawyer.
The Culture and Industry committees were well aware of the possible economic and cultural dangers of software patents, and took care to flag them up by proposing the following recital, amendment ITRE-3.
(As well as the main legal articles, European directives contain "recitals", which outline the broad policy goals, are can be used by courts for guidance on how to interpret the articles).
McCarthy specifically recommended, and got, a vote against the amendment.
"While software plays an important role in a number of industries it is
also a basic form of creativity and self-expression. Software is, in
addition, a field of specialised engineering and a basic human activity,
with more than 10 million professional developers throughout the world
and tens of millions of people creating software for one purpose or
another. Independent developers and small businesses play a fundamental
role in innovation in this area. It follows that the means employed to
boost investment in largely software-based industries should not lead to
jeopardising the capacity of all concerned to become active creators and
innovative users of software, and in particular that patents should not
permit the monopolisation of tools for self-expression, creativity, and
the dissemination and exchange of information and knowledge."
This was not something McCarthy was interested in, even as a policy goal.
She also killed the clauses which would have given the aspiration teeth.
* From: Hartmut Pilch <phm@xxxxxx>
* To: news@xxxxxxxx, <patents@xxxxxxxx>
* Subject: McCarthy wins in JURI
* Date: Tue, 17 Jun 2003 13:04:55 +0200 (CEST)
The JURI vote was delayed by 2 hours. Our little conference was thereby
made impossible. Around 13.00 the voting was pushed through in 20
minutes, and McCarthy won a majority on all points, which means
- introduction of program claims
- refusal of interoperability privilege (ITRE 15)
- refusal of definition of "technical"
- what is new needn't be technical and what is technical needn't be new
- no need for a technical solution, only problem must be technical
- additional rationales for patentability (e.g. need to make money
from licensing in view of low-cost economies)
etc.
McCarthy was subsequently surrounded by congratulating journalists and
explained them that she only wanted to harmonise the status quo, wasn't
legalising software patents, was against US-style patenting of algorithms
and business methods, would not hurt opensource software etc. Some of
these journalists also had a chance to meet Erik and Alex who watched the
session.
A collection of statements and documentation about the JURI vote is found
at
Unlimited patents will be disastrous for the European software industry and SMEs
The Legal Affairs Committee of the European Parliament today adopted a report that allows for the unlimited patenting of software which will, in one swoop, entrench the market dominance of multinational companies, force small software firms out of business and bring to an end the European free software movement.
With precise briefing from the Commission - where the bureaucrat responsible is a former employee of the UK patents office, and by the European Patent Office (EPO) - which pockets money on every patent it grants, the rapporteur, British socialist Arlene McCarthy, has defended a confused report that is full of contradictions. In doing this she has a strong backing from Conservatives but fierce criticism from her own political group.
UK and German MEPs, in rejecting amendments to the report, have ignored the opinions of the Economic and Social Council, the Industry committee, the Culture committee, 140,000 people and 30 leading software scientists who signed two petitions to the Parliament, as well as the 95% of the European citizens who took part in a European Commission public consultation.
The EPO has been illegally granting patents for computer programs for two decades. This practise completely contradicts the Munich convention, which in 1973 established the EPO and decided that computer programs and other rules of organisation and calculation were not patentable inventions under European law.
Dany Cohn-Bendit MEP (Greens - Fr) Co-president of the Greens/EFA group and chairman of a conference earlier this year on software patents and SMEs, said: "This patent report is an insult even to the principle of free trade. Pretending to protect inventors and their inventions, it instead allows multinationals to lock up the market."
Mercedes Echerer MEP (Greens - A), member of the Culture Committee, said: "It is truly regrettable that some of my colleagues are so confused about the nature of information technology. Ideas and algorithms are already protected under copyright. A computer program, on the other hand, is like a kitchen recipe - all that is needed is a pencil and paper to write it down. Patents already protect technical inventions - there is no reason to extended them to cover software."
"This legalisation, as it stands, represents the death of the European software industry, and the death of the free and open-source software industry which, by more than a coincidence, is primarily a European sector. If implemented, it would conclude the transfer of our data-processing control to the US. You can be sure that the report will have a very bumpy ride when it goes to plenary in September with one third of committee members in opposition."
Neil McCormick MEP (EFA - Scotland), member of the Legal Affairs and Internal Market Committee, said: "This is a matter of great public concern. It is important to give incentives to inventions, but this does not and should not cover the essentially logical and mathematical work of software development. There is a real danger that legal development of the kind favoured by the majority in the Legal Affairs Committee will hinder innovative development by small firms, not protect it."
For further press information:
Helmut Weixler
Head of Press Office
The Greens in the European Parliament
Tel: (Bxl) +32 2 2844683
phone: 0032 475 671 340
fax: 0032 2 2844944
mobile phone: 0032-475-67 13 40
hweixler@europarl.eu.int
It appears, EU wants to link a certain technical device with its software, which could be patented for the use in this case, and only in this case, together with the device, but which is not covered by the patent.
The problem is that the "certain technical device" is any suitably-programmed general pupose computer; and the "case" which can be patented is whatever the software usefully does.
For all her words, McCarthy's proposal is about as general and as bad as it could get.
This article is, generally, totally irrelevant. The European Parliament holds virtually no power, and is, generally, merely a talking-shop. The Council of Ministers, and, to a larger extent, the Commission hold all power. There are attampts to change this with the work-in-progress that is the Constitution.
I think you are somewhat out of date.
Parliament now has amendment rights and a veto on proposals coming out of Brussels. If Parliament doesn't vote to pass a Directive, it doesn't happen.
This MEP, Arlene McCarthy, is the chair of the committee and draughtswoman of the report which is responsible will advise parliament how to vote and what to recommend re the software patenting directive.
This committee is where the parliament discusses the directive in detail clause by clause. The report matters, and could well be decisive.
And this Monday, soon after 3 o'clock, the committee votes on which amendments it will or will not recommend to parliament.
The problem with the "obviousness" criterion is that
it has become very very weak, the way that "obviousness" is now tested.
Typically very few such patents are struck out as obvious, unless there is an *actual suggestion* in the prior art, in the same application context, that a particular approach should be used.
As for "technical", I think there are two main heads of reasoning for continuing to believe that patents for computer programs should continue to be ruled out, along with patents for "mathematical methods; presentation of information; schemes, rules and methods for performing mental acts, playing games or doing business" (European Patent Convention, 1973), provided that the patent application is directed to these objects as such (and not a combination invention, e.g. a chemical process whose input parameters are calculated according to a mathematical formula).
The first is that, unlike patents on a new chemical compound or a new machine, patents in the abstract world of information go further and restrict self-expression: they restrict what you can say, what you can discuss, and how you can analyse information. That has traditionally been a step too far, and it should still be a step too far.
Secondly, economically: both argument in principle, and the US experiment in practice suggest that the effects of allowing software patents are overwhelmingly negative. Patents work best when one product = one patent (as in certain parts of the pharma and chemical industries), and huge R&D required to develop each idea into a patentable product. Software on the other hand is right at the other extreme, with each software product typically depending on thousands or tens of thousands of different atomic ideas; and almost no R&D between "idea" and patent. In such an environment, patents (1) do not reward innovation, they turn it into a minefield; (2) they reward investment in lawyers and strategic patent thickets, rather than investment in development (see eg the recent study by Bessen and Hunt); and (3) they take an industry with an inbuilt tendency to oligopolistic domination through network effects, and set those dominances in unassailable patent-protected concrete.
The major cost in software is the development and debugging, not the basic ideas. This is a good indicator for protection by copyright on the expression of the idea, rather than patent protection covering all possible expressions of the idea.
There is no sign that software development *needs* patents. On the contrary,
software patents threaten to slow down progress in the entire industry.
So where to draw a line in the sand ?
In view of the first argument, I think the fundamental line *should* be to try to separate the
world of abstract information from that of concrete reality. And so, although language purists may complain that it makes for a particularly technical definition of the word "technical", I do think that the amendment you are so critical of *does* make the right distinction:
"The processing, handling and presentation of information do not belong to a technical field."
(note that "technical field" is being given a specialised normative legal meaning, to delineate what should and should not be patentable).
Without such a definition, over the years the EPO has ruled almost every measure by which a software element could possibly be useful would be "technical" and therefore patentable: effectively, unlimited patentability. Unamended, this directive is an attempt to force that reasoning onto all the national courts.
At the moment the decision is in the balance, with the crucial recommendation of the parliament's legal affairs (JURI) committee due to be decided on June 16th.
This is the moment when letters and phone calls to MEPs are most needed to make a decis
The rapporteur of the committee choosing amendments - Arlene McCarthy - has said that any proposals or arguments based in the notion of software being non-patentable will not be heard:
Not exactly
There are already several useful amendments already down which would (unlike McCarthy) would place real limits on software patenting.
McCarthy cannot stop these amendments being voted on (now expected to be the 16th June), and several have already secured majorities in votes on other, advisory committees.
What I think the IDG article means is that she would not agree to personally recommend any new "compromise amendments" at that meeting, if they do not endorse software patents.
It is notable that while McCarthy talks up the strictness of her proposals, they effectively amount to unlimited software patentability; as well as lower standards, they would impose the EPO's bend-over-backwards flexible approach on the national court systems of countries like the UK, France and Germany, which have all previously been much more reluctant and limited in upholding software patents.
To get an idea of the significance of the CULT and ITRE amendments, consider the current practise of the European Patent Office (to be OK'd, if the McCarthy draft goes through).
According to the European Patent Convention (1973), "computer programs... as such" were to be specifically excluded from patentability. However, according to the latest EPO guidelines software innovations are now patentable, if they have a 'technical character', beyond just being run on a computer:
A further technical effect which lends technical character to a computer program may be found e.g. in the control of an industrial process or in processing data which represent physical entities or in the internal functioning of the computer itself or its interfaces under the influence of the program and could, for example, affect the efficiency or security of a process, the management of computer resources required or the rate of data transfer in a communication link.
Just about any kind of software design or process is therefore now apparently deemed patentable by the EPO, if it can be defended as having any kind of rational justification or identifiable practical usefulness.
(Note that the exact nature of "technical character" is never defined. Apparently it's something you just know when you see it.)
The width of EPO patentability is borne out by considering a selection of some of the patents that the EPO has granted in recent years:
So, when in the letter Mr Taylor calls on MEPs to support the McCarthy draft proposals, because they "confirm the current scope of patentability" and would be "integrating the long-standing approach of the European Patent Office", this is effectively a call to confirm almost unlimited software patentability.
The real problem is that the amendments which this letter is backing are much weaker than those previously proposed by the Culture committee CULT or the Industry committee ITRE.
It would be much better if, when the JURI committee meets on May 22nd to vote, they choose the CULT amendments, or the ITRE amendments, or those proposed by some of the Greens and Socialists, rather than the ones this letter is calling for.
For example, CULT recommended that only systems involving "the use of natural forces to control physical effects beyond the digital representation of information" should be patentable - essentially the caselaw in Germany and many other European states in the 1970s and 1980s.
ITRE proposed that "inventions involving computer programs which implement business, mathematical or other methods, which inventions do not produce any technical effects beyond the manipulation and representation of information within the computer-system or network, shall not be patentable".
Also, that "the production, handling, processing, distribution and publication of information, in whatever form, can never constituate direct or indirect infringement of a patent, even when a technical apparatus is used for that purpose."
In contrast the amendments drafted for JURI by Arlene McCarthy, which the letter recommends, are much looser, in many places not well drafted at all, and contain none of these clearly defined restrictions.
The letter in fact is even worse, because unlike even Arlene McCarthy it supports "program claims" -- ie making the publication of source code on a disk or a website a primary patent violation (Compare that under ITRE's amendments such a publication would be free speech to be protected, not even an indirect violation).
There is much much more information on the FFII website, including
Slashdot Mirror
This is a massive success, due to a level of lobbying unprecedented at this stage of a technical European measure.
The French newspaper Liberation has an interview this morning with Michel Rocard MEP, who wrote the opinion of the CULT committee, and is firmly anti-swpat.
A former prime minister of France, Rocard is one of the most senior and influential figures in the Social Democrat group, and his words probably speak for quite a following amongst their MEPs.
(Translation to follow)
http://www.liberation.fr/page.php?Article=121303
Michel Rocard s'oppose à la brevetabilité des logiciels:
Tout le monde se copie et c'est bien ainsi Par Florent LATRIVE et Laurent MAURIAC
lundi 30 juin 2003
Il faut préserver une civilisation où la part du non-marchand et des savoirs humains est respectée.
On ne trouve pas d'ordinateur sur le bureau parisien de Michel Rocard. Il l'admet volontiers : il n'est pas de la génération qui a une pratique facile de l'ordinateur. Président de la Commission de la culture au Parlement européen, il a pourtant dû se plonger, avec un mal fou, dans la brevetabilité des logiciels, des mots qui étaient pour moi inconnus il y a encore un an. Aujourd'hui, s'il en parle avec autant d'animation, c'est que derrière les aspects techniques se cache un vrai sujet de civilisation. Pour l'ex-Premier ministre, l'introduction de brevets sur les logiciels en Europe serait très grave. Elle remettrait en cause la libre circulation du savoir humain. Jusqu'à présent, les logiciels sont officiellement exclus du champ de la brevetabilité en Europe, tout comme les équations mathématiques ou les recettes de cuisine. Depuis plusieurs mois, un projet de directive très polémique est soumis aux institutions de l'Union européenne et vise à modifier ce régime. Il sera soumis au vote du Parlement européen début septembre.
Pourquoi estimez-vous que l'Europe ne doit pas autoriser les brevets sur les logiciels ?
Depuis la grotte de Lascaux, il n'est pas sûr que l'humanité ait progressé dans ses capacités esthétiques. Quant à ses capacités éthiques et morales, on s'entre-tue toujours autant. En revanche, dans le domaine du savoir technique et de la maîtrise de la nature, les progrès sont foudroyants. La croissance vertigineuse du savoir est la clé de cette histoire. Le savoir s'est répandu par la copie, tout le monde a recopié tout le monde, et c'est bien comme ça. Avec la brevetabilité du logiciel, on change le statut du savoir humain. Tout le commerce intellectuel des produits de l'esprit humain, les moyens de connecter les savoirs passeront de plus en plus par des logiciels. Si on introduit une brevetabilité, c'est-à-dire un coût, une interdiction, on met en place une règle inédite. C'est inquiétant.
Il ne paraît pourtant pas anormal de rémunérer les créateurs et les inventeurs...
Il faut distinguer deux choses : les oeuvres, protégées par le droit d'auteur, et les inventions, protégées par le brevet. Au XIXe siècle, on s'est d'abord intéressé aux premières. On a considéré comme normal de rémunérer les créateurs et de garantir la préservation de l'intégrité de leurs oeuvres. On a ainsi créé le droit d'auteur. Plus tard, on a mis en place le brevet d'invention, soit l'interdiction à quiconque d'utiliser une invention sans payer une redevance. Pendant le XXe siècle, nous n'avions pas de problèmes pour différencier les deux. Contrairement aux oeuvres protégées par le droit d'auteur, l'invention se définit par la mise en jeu de la matière ou des forces de la nature. La conviction que le savoir humain doit circuler impliquait qu'il n'y ait pas de breve
The truth is, we have about three weeks to go, because for most of the summer the MEPs are away on holiday.
To be more precise:
- Next week [30/06 - 04/07] we can lobby in Strasbourg (Session).
- The week after [07/07 - 11/07] we can lobby in Brussels (Committee meetings).
... after that there is no official business scheduled all summer ...- Finally [25-29/08] there is one week in Brussels before the September session which starts on 1st September.
Even then, attendence for the two outlying committee meeting session-weeks in Brussels is notoriously poor.The MEPs' UK constituency offices stay open over the summer, but politics in Brussels essentially shuts down.
Most of the political groups will decide in Strasbourg this week what line they will take, before all the MEPs go away.
But in effect there are only three weeks to go, because for most of that time the MEPs are away on holiday.
To be more precise:
- Next week [30/06 - 04/07] we can lobby in Strasbourg (Session).
- The week after [07/07 - 11/07] we can lobby in Brussels (Committee meetings).
... after that there is no official business scheduled all summer ...- Finally [25-29/08] there is one week in Brussels before the September session which starts on 1st September.
Even then, attendence for the two outlying committee meeting session-weeks in Brussels is notoriously poor.The MEPs' UK constituency offices stay open over the summer, but politics in Brussels essentially shuts down.
So the next two weeks are critical.
Most of the political groups will decide in Strasbourg *this week* what line they will take, before all the MEPs go away.
The second, a long variant (qv) of the first, seems likely to prevail in the common figurative use.
-- Fowler, Modern English Usage, 2e
(A standard reference on UK English)
According to Bill Bryson, Troublesome Words, the difference is one of intent:
but apologises:Fowler's Modern English Usage offers the following grid:
Thanks for setting the story straight.
One thing that would help a lot though, would be if the position statement could be amended to read:
Without the text in bold, the statement has unfortunately been used to suggest that you were (and are) calling for a vote against amendments like ITRE-15 on interoperability - which from your comment above you are actually clearly in favour of - and other amendments which were not on Arlene McCarthy's voting list.Clearing up this glitch would be useful.
But in effect there are only three weeks to go, because for most of that time the MEPs are away on holiday.
To be more precise:
- Next week [30/06 - 04/07] we can lobby in Strasbourg (Session).
- The week after [07/07 - 11/07] we can lobby in Brussels (Committee meetings).
... after that there is no official business scheduled all summer ...- Finally [25-29/08] there is one week in Brussels before the September session which starts on 1st September.
The next two weeks are critical.Most of the political groups will decide in Strasbourg this week what line they will take, before all the MEPs go away.
Open Forum Europe got stitched up.
The patent directive is far from a done deal, as the success of last week's lobbying in Brussels shows.
The important point, that the journalist didn't realise, was that Mike Banahan was not talking about a consultation run by the European Commission or the European Parliament, but about a *consultation run by a firm of lobbyists* who had been hired by a consortium of big business associations. (Remember that OFE's response was paraded not by the Commission, but by this consortium of associations).
So the real story is
The subsequent paragraphs take on a completely different dimension when you realise they are about the lobbying firm for the business associations, not the European institutions:
The quotes are echoed in this posting to the FSF Europe-UK list:
The parliament vote is now expected in the first week of September. The Socialist group in particular is very divided. But internal party-group positions are expected to take shape this week, while the MEPs are all gathered together in Strasbourg, before they disperse for the long summer recess. It is therefore worth contacting MEPs now, sooner rather than later, to have maximum effect.
Contact details for UK MEPs can be found by clicking on the map here
(This information sent to ZDnet on Thursday night, but apparently not of interest).
Open Source Software (OSS) As a Possible Default Exploitation Route for
Government Funded Software
Comments from Intellect
Intellect represents around 1000 companies in the information technology,
telecommunications and electronics industries based in the UK. Formed in 2002 through
the merger of the Computer Services and Software Association (CSSA) and the Federation
of the Electronics Industry (FEI), Intellect members contribute around 10% of UK GDP.
Further information about Intellect can be found at www.intellectuk.org and a full list of
members at http://www.intellectuk.org/publications/corporate_ literature/factcard.pdf.
Intellect thanks the Department of Trade and Industry and the e-EnvoyÃââs Office for the
opportunity to comment on the interim conclusions on a draft policy for the use of OSS as a
possible default exploitation route for Government funded software.
Background to use of OSS
One of the main purposes for acquiring software under an OSS licence is to provide a user
unrestricted access to source code so that it can be modified and improved without requiring
further consent from any IP rightholder. Many software developers who are involved with
developing this type of software do it for personal interest and not for commercial gain.
Others are committed to promoting innovation, while others Ãââoe particularly corporate
sponsored contributors Ãââoe are motivated by a desire to promote interoperability and open
computing environments by sharing code within the information technology ÃâÅ"ecosystemÃâÂ.
Types of OSS Licence
There are numerous types of OSS licence but they basically fall into two categories:
Permissive Licences:
These types of licences, such as the Berkeley Software Distribution Licence (BSD), allow
users to copy, re-distribute and modify the software at no charge, whether in source code or
machine-readable object code, and do not seek to restrict these rights. Users are free to
distribute modified versions of the software under whatever terms they wish - including as
part of a commercial product subject to standard commercial licensing terms. So software
that is the subject of such OSS licences can be used in conjunction with commercial
software in a solution, leaving the commercial software to be governed by the licence
imposed by the developer and the open source software to be governed by the original
licence terms. Under these terms commercial developers do not seek to make economic
gain from the original Government funded research, merely from any subsequent changes
or innovations developed by them.
Restrictive Licences:
These licences, such as the GNU General Public Licence (GNU GPL), grant free rights to
users to use, copy or modify without payment or restriction. They prohibit users from
distributing the software on any terms other than the original licence, and impose this
requirement on any program derived from or based in whole or part on the software. In the
context of an OSS program that is then developed commercially, unlike the permissive,
these licences impose their terms on the commercial part of the software as well as the
OSS element.
Page 2
2
This actually limits the freedom of the developers whose programs utilise, are derived from,
or in some cases even link to or interlink with, such li
And then he/she will approve it anyway.
A patent on a business method will be approved if some technical considerations or a technical effect is involved in the invention.
See http://www.iusmentis.com/patents/businessmethods/e poexamples/
for examples.
Unlike some national patent offices, the EPO has no outright bar on computer-implemented business methods. This directive will force its interpretation on the rest of Europe.
The EPC was never meant to prevent patents on computer-implemented inventions; the clause that prevents patent on "computer programmes" simply has no effect -- patent lawyers agree that they are either "technical" (and patentable) or "non-technical" (and not patentable).
Not true.
When written, the EPC's art 52 was seen as clearly excluding computer programs, provided that the patent application was directed to these objects as such (and not a combination invention, e.g. a chemical process whose input parameters are calculated according to a mathematical formula).
The EPO's Examination Guidelines of 1978 were quite clear on this:
Until 1986 the EPO's boards of appeal and national courts, except in the UK, firmly rejected any claims to new combinations of generic computing equipment with calculation rules (= computer programs) in whatever form.
Unlike the US patent system, the European patent system only protects "technical" inventions.
McCarthy's amendment 3 (which was passed) starts:
It is true that McCarthy's amendment 15 states that
This reflects the current EPO guidelines. But almost anything which can be presented as identifiably useful counts as a technical contribution, beyond the normal working of the computer.
Thus, as the Iusmentis site summarises, "processing which affects the way in which a computer operates is technical. For example, saving memory, increasing speed, improving security, operating a user interface, configuring the operating system, coordinating and controlling internal data ... using computers instead of humans to process secret/private/sensitive data if it would increase security or confidentiality".
According to rulings on EP 0689133, even the "economical use of the resource area on the screen" is technical.
And if that doesn't cover the program, then "processing which is based on considerations of how a computer works is technical". Thus in the Sohei case a patent the EPO Board of Appeal upheld a patent for using the same input form to update two databases, namely an inventory database and a billing database, because it *implied* (but didn't actually limit itself by specifying how to do it) the handling of files containing different types of information, which is technical.
The moral is: if you can't make your new subroutine out to be technical, you need a new patent lawyer.
The draft EU Directive does a l
The Culture and Industry committees were well aware of the possible economic and cultural dangers of software patents, and took care to flag them up by proposing the following recital, amendment ITRE-3.
(As well as the main legal articles, European directives contain "recitals", which outline the broad policy goals, are can be used by courts for guidance on how to interpret the articles).
McCarthy specifically recommended, and got, a vote against the amendment.
This was not something McCarthy was interested in, even as a policy goal.
She also killed the clauses which would have given the aspiration teeth.
* From: Hartmut Pilch <phm@xxxxxx>
* To: news@xxxxxxxx, <patents@xxxxxxxx>
* Subject: McCarthy wins in JURI
* Date: Tue, 17 Jun 2003 13:04:55 +0200 (CEST)
The JURI vote was delayed by 2 hours. Our little conference was thereby made impossible. Around 13.00 the voting was pushed through in 20 minutes, and McCarthy won a majority on all points, which means
- introduction of program claims
- refusal of interoperability privilege (ITRE 15)
- refusal of definition of "technical"
- what is new needn't be technical and what is technical needn't be new
- no need for a technical solution, only problem must be technical
- additional rationales for patentability (e.g. need to make money from licensing in view of low-cost economies)
etc.
McCarthy was subsequently surrounded by congratulating journalists and explained them that she only wanted to harmonise the status quo, wasn't legalising software patents, was against US-style patenting of algorithms and business methods, would not hurt opensource software etc. Some of these journalists also had a chance to meet Erik and Alex who watched the session.
A collection of statements and documentation about the JURI vote is found at
http://swpat.ffii.org/news/03/juri0617/
--
Hartmut Pilch, FFII & Eurolinux Alliance tel. +49-89-18979927
Protecting Innovation against Patent Inflation http://swpat.ffii.org/
145,000 votes 400 firms against software patents http://noepatents.org/
Bruxelles/Brussel, 17 June 2003,
Patent vote fails Europe's software programmers
Unlimited patents will be disastrous for the European software industry and SMEs
The Legal Affairs Committee of the European Parliament today adopted a report that allows for the unlimited patenting of software which will, in one swoop, entrench the market dominance of multinational companies, force small software firms out of business and bring to an end the European free software movement.
With precise briefing from the Commission - where the bureaucrat responsible is a former employee of the UK patents office, and by the European Patent Office (EPO) - which pockets money on every patent it grants, the rapporteur, British socialist Arlene McCarthy, has defended a confused report that is full of contradictions. In doing this she has a strong backing from Conservatives but fierce criticism from her own political group.
UK and German MEPs, in rejecting amendments to the report, have ignored the opinions of the Economic and Social Council, the Industry committee, the Culture committee, 140,000 people and 30 leading software scientists who signed two petitions to the Parliament, as well as the 95% of the European citizens who took part in a European Commission public consultation.
The EPO has been illegally granting patents for computer programs for two decades. This practise completely contradicts the Munich convention, which in 1973 established the EPO and decided that computer programs and other rules of organisation and calculation were not patentable inventions under European law.
Dany Cohn-Bendit MEP (Greens - Fr) Co-president of the Greens/EFA group and chairman of a conference earlier this year on software patents and SMEs, said: "This patent report is an insult even to the principle of free trade. Pretending to protect inventors and their inventions, it instead allows multinationals to lock up the market."
Mercedes Echerer MEP (Greens - A), member of the Culture Committee, said: "It is truly regrettable that some of my colleagues are so confused about the nature of information technology. Ideas and algorithms are already protected under copyright. A computer program, on the other hand, is like a kitchen recipe - all that is needed is a pencil and paper to write it down. Patents already protect technical inventions - there is no reason to extended them to cover software."
"This legalisation, as it stands, represents the death of the European software industry, and the death of the free and open-source software industry which, by more than a coincidence, is primarily a European sector. If implemented, it would conclude the transfer of our data-processing control to the US. You can be sure that the report will have a very bumpy ride when it goes to plenary in September with one third of committee members in opposition."
Neil McCormick MEP (EFA - Scotland), member of the Legal Affairs and Internal Market Committee, said: "This is a matter of great public concern. It is important to give incentives to inventions, but this does not and should not cover the essentially logical and mathematical work of software development. There is a real danger that legal development of the kind favoured by the majority in the Legal Affairs Committee will hinder innovative development by small firms, not protect it."
For further press information:
Helmut Weixler
Head of Press Office
The Greens in the European Parliament
Tel: (Bxl) +32 2 2844683
phone: 0032 475 671 340
fax: 0032 2 2844944
mobile phone: 0032-475-67 13 40
hweixler@europarl.eu.int
The problem is that the "certain technical device" is any suitably-programmed general pupose computer; and the "case" which can be patented is whatever the software usefully does.
For all her words, McCarthy's proposal is about as general and as bad as it could get.
I think you are somewhat out of date. Parliament now has amendment rights and a veto on proposals coming out of Brussels. If Parliament doesn't vote to pass a Directive, it doesn't happen. This MEP, Arlene McCarthy, is the chair of the committee and draughtswoman of the report which is responsible will advise parliament how to vote and what to recommend re the software patenting directive.
This committee is where the parliament discusses the directive in detail clause by clause. The report matters, and could well be decisive. And this Monday, soon after 3 o'clock, the committee votes on which amendments it will or will not recommend to parliament.
Typically very few such patents are struck out as obvious, unless there is an *actual suggestion* in the prior art, in the same application context, that a particular approach should be used.
As for "technical", I think there are two main heads of reasoning for continuing to believe that patents for computer programs should continue to be ruled out, along with patents for "mathematical methods; presentation of information; schemes, rules and methods for performing mental acts, playing games or doing business" (European Patent Convention, 1973), provided that the patent application is directed to these objects as such (and not a combination invention, e.g. a chemical process whose input parameters are calculated according to a mathematical formula).
The first is that, unlike patents on a new chemical compound or a new machine, patents in the abstract world of information go further and restrict self-expression: they restrict what you can say, what you can discuss, and how you can analyse information. That has traditionally been a step too far, and it should still be a step too far.
Secondly, economically: both argument in principle, and the US experiment in practice suggest that the effects of allowing software patents are overwhelmingly negative. Patents work best when one product = one patent (as in certain parts of the pharma and chemical industries), and huge R&D required to develop each idea into a patentable product. Software on the other hand is right at the other extreme, with each software product typically depending on thousands or tens of thousands of different atomic ideas; and almost no R&D between "idea" and patent. In such an environment, patents (1) do not reward innovation, they turn it into a minefield; (2) they reward investment in lawyers and strategic patent thickets, rather than investment in development (see eg the recent study by Bessen and Hunt); and (3) they take an industry with an inbuilt tendency to oligopolistic domination through network effects, and set those dominances in unassailable patent-protected concrete.
The major cost in software is the development and debugging, not the basic ideas. This is a good indicator for protection by copyright on the expression of the idea, rather than patent protection covering all possible expressions of the idea. There is no sign that software development *needs* patents. On the contrary, software patents threaten to slow down progress in the entire industry.
So where to draw a line in the sand ?
In view of the first argument, I think the fundamental line *should* be to try to separate the world of abstract information from that of concrete reality. And so, although language purists may complain that it makes for a particularly technical definition of the word "technical", I do think that the amendment you are so critical of *does* make the right distinction:
(note that "technical field" is being given a specialised normative legal meaning, to delineate what should and should not be patentable).
Without such a definition, over the years the EPO has ruled almost every measure by which a software element could possibly be useful would be "technical" and therefore patentable: effectively, unlimited patentability. Unamended, this directive is an attempt to force that reasoning onto all the national courts.
At the moment the decision is in the balance, with the crucial recommendation of the parliament's legal affairs (JURI) committee due to be decided on June 16th. This is the moment when letters and phone calls to MEPs are most needed to make a decis
Not exactly
There are already several useful amendments already down which would (unlike McCarthy) would place real limits on software patenting.
For an introduction to some of the amendments, see:0 304/index.en.html
http://swpat.ffii.org/papers/eubsa-swpat0202/ipat
There is also a page (still under development) which analyses all the amendments placed so far:0 304/index.en.html
http://swpat.ffii.org/papers/eubsa-swpat0202/juri
McCarthy cannot stop these amendments being voted on (now expected to be the 16th June), and several have already secured majorities in votes on other, advisory committees.
What I think the IDG article means is that she would not agree to personally recommend any new "compromise amendments" at that meeting, if they do not endorse software patents.
It is notable that while McCarthy talks up the strictness of her proposals, they effectively amount to unlimited software patentability; as well as lower standards, they would impose the EPO's bend-over-backwards flexible approach on the national court systems of countries like the UK, France and Germany, which have all previously been much more reluctant and limited in upholding software patents.
FWIW, the European Patent Office is now granting most software patents.
This draft law would confirm that what the EPO is doing is legal.
But other amendments have been proposed, which would make software patenting much more difficult again (how things used to be).
These other amendments desperately need support and lobbying.
See this post for more of the ugly detail.
According to the European Patent Convention (1973), "computer programs ... as such" were to be specifically excluded from patentability. However, according to the latest EPO guidelines software innovations are now patentable, if they have a 'technical character', beyond just being run on a computer:
Just about any kind of software design or process is therefore now apparently deemed patentable by the EPO, if it can be defended as having any kind of rational justification or identifiable practical usefulness. (Note that the exact nature of "technical character" is never defined. Apparently it's something you just know when you see it.)
The width of EPO patentability is borne out by considering a selection of some of the patents that the EPO has granted in recent years:
So, when in the letter Mr Taylor calls on MEPs to support the McCarthy draft proposals, because they "confirm the current scope of patentability" and would be "integrating the long-standing approach of the European Patent Office", this is effectively a call to confirm almost unlimited software patentability.
Sorry for the attack of the George W.s
It would be much better if, when the JURI committee meets on May 22nd to vote, they choose the CULT amendments, or the ITRE amendments, or those proposed by some of the Greens and Socialists, rather than the ones this letter is calling for.
For example, CULT recommended that only systems involving "the use of natural forces to control physical effects beyond the digital representation of information" should be patentable - essentially the caselaw in Germany and many other European states in the 1970s and 1980s.
ITRE proposed that "inventions involving computer programs which implement business, mathematical or other methods, which inventions do not produce any technical effects beyond the manipulation and representation of information within the computer-system or network, shall not be patentable".
Also, that "the production, handling, processing, distribution and publication of information, in whatever form, can never constituate direct or indirect infringement of a patent, even when a technical apparatus is used for that purpose."
In contrast the amendments drafted for JURI by Arlene McCarthy, which the letter recommends, are much looser, in many places not well drafted at all, and contain none of these clearly defined restrictions.
The letter in fact is even worse, because unlike even Arlene McCarthy it supports "program claims" -- ie making the publication of source code on a disk or a website a primary patent violation (Compare that under ITRE's amendments such a publication would be free speech to be protected, not even an indirect violation).
There is much much more information on the FFII website, including
- their critique of the letter.
- their analysis of the McCarthy draft amendments for JURI
- their analysis of the CULT report and proposed amendments
- their analysis of the ITRE report and proposed amendments
-- all with links through to the original documents.Also worth reading is this open letter from 20 distinguished European professors of Computer Science about why software patents would be a bad thing:
(Google-cache copy)
John Pendry is one very smart guy.
The Economist also had an article