Both the Parliament and the Council are strengthened. And the strengthening of the EP only makes them as strong as they in this particular directive process (codecision) in several other cases. Which means: still easily ignored by both the Commission and Council, with as only weapon to kill a directive process (but still very disadvantaged when it comes to changing the text of a directive).
Minister Marcinski was happy with all signatures that document got. It was purely informal, not some official petition which required European citizenship.
It would not make the Parliament more powerful than they are in the case of this directive. It moves more procedures into codecision, which is how the software patents is being handled today. And also gives the Council more power, with the justification that they are kept in check by national parliaments.
Over the past year, we have seen how "powerful" the EP is in codecision, with both the Council and Commission ignoring everything they say (first reading) or ask (restart). And today, we have seen how much the Council cares about opinions of national parliaments.
You are wrong, what you are talking about is the consultation procedure. This directive is handled under codecision, which means the EP can insert amendments as well (in first reading at least, although due to the fact that elections have taken place, they can exceptionally also do so in second reading).
The constitution mainly puts more things under the codecision procedure (instead of consultation) and the EP indeed has more power their in theory. In practice, as you can see, the Council and Commission still do their best to ignore them.
The European Parliament and individual EU member states can lodge a complaint at the European Court of Justice, yes. Additionally, if the directive ever comes through, individual citizens can also lodge a complain at the European Court of Justice if they feel it tramples on their liberties.
And as someone else already said: the Council has adopted its "common position" (although it was far from common in this case). It still has to get into the European Parliament, through its second reading (where it can be amended or even rejected, after which the whole game is immediately over).
Anyway, as far as I am concerned, the big news is not what they adopted (a directive text which codifies the European Patent Office's US practice), but how they adopted it. Three countries with the support of several others asked to reopen discussions, and the Luxembourg presidency simply denied that even though they have to let the Council as a whole decide about that according to their own rules of procedure (point 3.8).
Nice socialist thinking there. Patents are a means of encouraging the inventor to protect his or her work.
So now the US Constitution is "socialist"? (since you're US-based, I guess you mean "communist" with that)
The goal is to promote science and the useful arts (which are beneficial to society, otherwise it wouldn't make any sense to hand out monopolies in the first place). Helping an inventor monopolise his work is just a means which may or may not contribute to that goal.
Patent law is a purely economic law (see page 9, numbered as page 5, of the pdf) designed to correct malfunctions in the default situation (namely the uncorrected free market).
Supposing that Denmark does block it (I doubt Poland will, they've backed down before). What happens then? Does it become a B item, or does it go back to the Parliment?
There are two things: blocking it (i.e., removing the A-item from the agenda). That's what Poland did the previous times. That simply means it won't be approved during that meeting, and it can appear again during any consequent meeting.
Asking for a B-item means reopening discussions in the Council, which means the political agreement from May 2004 is null and void, leaving everyone finally free again to vote however they want (well, in theory they're free now as well, but due to diplomatic and political pressure they aren't). It means no A-item can again appear until there's a new qualified majority in favour of a new (or even the same) text.
It goes back to parliament only after the Council has adopted a Common Position (i.e., after reaching a political agreement, they adopt an A-item on it) -and then it's second reading in the EP-, or if the Commission restarts (in which case it's a new first reading in the EP).
No, many engineers have been confronted with the same problems and not solved it. It takes skill to solve the problem, and hence the patent.
No, not "hence the patent". Patents are not granted specifically for skilled work, they are something granted by society because it considers that the downsides of granting it (temporary monopoly) are outweighed by the upsides (information about how the innovation works, possible stimulus for people to innovate). At least that's the theory, it unfortunately generally doesn't work really that way anymore in practice.
Society has made a bunch of rules which patents must conform to in order to get as little patents as possible for which the downsides outweigh the upsides, and "skill" is just one of those criteria (in the form of the "non-obviousness" criterium, although it is a very low barrier).
It does not mean that everything smart should be patentable. Nobody has an "inherent right" to a patent due to work he performed. Society has concluded that patents on e.g. mathematical methods and scientific theories are generally not profitable for them (although it can take an enormous amount of skill to develop those).
It's similar with computer-implemented mathematics, business methods etc. You can find a bunch of studies on that subject here
Could you send me an email? (email in header of this post, or info at softwarepatenten.be) Then we can see how your experience can be best used to inform politicians about the dangers of software patents. Thanks!
There is no way to do a "simple, quick and cheap patent search" will will turn up patents for everything you are doing in a computer program. In fact, that's one of the reasons it's virtually impossible to insure yourself against infringement on software patents, because there's no way for insurers to assess the risks properly (resulting in losses up to 3000% times for UK insurance firms which did offer such insurance for a while, such as Lloyds).
First off, lots of European software companies own patents.
75% of already granted European software patents are owned by US and Japanese companies. European companies have only something like 20% of all granted software patents.
Not specifically on software, but on processes.
US companies also patent processes implemented in software (to buy something with one click of a mouse, to load certain kinds of XML information,...), and not individual computer programs.
A very nice report was published recently by the European Parliament's Directorate General on Economic and Social Policy, which completely debunks the "computer-implemented inventions are entirely different things that software", and which confirms that the European Patent Office's practice is not all that different from US practice.
These are permitted. Say for example an new process for compressing an image, or for searching. That is patentable, whheter it's software or not.
Compressing an image is generally plain maths, and "mathematical processes" are not (should not be) patentable in Europe. Of course, the EPO (with the help of enterprising lawyers appealing to its Technical Board of Appeals) has found ways to interpret the European Patent Convention to get around this. I'm also not sure how you can say in general that "searching" is patentable.
Secondly, most of these European software companies also patent their inventions in the US, and are thus protected by US law against infringment of their patents in the US.
I'd be very interested in seeing any numbers you have on this. Also, whether or not we have software patents in Europe is completely independent of those companies' abilities to get software patents in the US.
Thirdly, If a US company does the same, and patents their inventions in Europe, under the European system, and then nationalises their patent in any of the European countries, they are protected against infringment in the contries they have nationalised in. Thats fair enough isn't it?
Patents are not about fairness, patents are economic means which can be used to correct an economic system running haywire due to relentless imitation. You do not introduce artificial monopolies in an economic sector because it's "fair".
Finally, what we are talking about are property rights, which are generally protected in our western societies.
You might want to look at this presentation by a lawyer and law scholar specialised in software patents on that. Trying to paint it as a "communists vs capitalists" is sooooo last 5 years (although Bill Gates doesn't seem to know that yet either).
Lile most valuable posessions (wealth), thoes who have them, want them, thoes who don have their own want to take others!
Even if you unconditionally believe that any sort of intellectual creation should be associated with the broadest possible form of property rights, there's still the problem that software patents conflict with the property rights of software authors, granted to them by copyright. They prevent the normal exploitation of their works, which is even in conflict with the often cited TRIPs agreement.
In Europe, I hope we are sophisticated enough in our appreciation of the compeating rights involved to be able to balance theese rights and accept that there is a place for patent laws that incentivise and reward creative thinking.
Again, this has nothing to do with rewards, respect for work or whatever. It's
They do have pending patents on things like that all over the world, but of course that doesn't really mean anything (anyone can have a patent pending on pretty much everything, and even if granted that doesn't really mean all that much...)
Feeding herbivores the meat of their dead companions in fact is quite unhealthy for them, and is the (prime?) cause of mad cow desease and the related human desease Creutzfeld-Jacob. That's why it was banned in Europe, not because vegetarians, vegans or animal rights activists asked for it.
A reasonable and non-discriminatory agreement (RAND) indeed per definition does not have to exclude Free Software, but in practice always does. The idea of a RAND that everyone who uses it, pays a "reasonable" amount of money for its usage, to jointly fund development of future standards or to compensate the original developers.
Now, if you incorporate such a standard in a Free Software (GPL) program (after paying), then it's free for all GPL programs in the world to use, because the GPL allows them to use your code and the GPL forbids requiring a payment for this (regardless of patents or whatever). In effect, you are sublicensing your RAND agreement to the entire Free Software community, and I don't think there is any RAND standard out there which permits sublicensing.
So in theory, a RAND standard could make an exception to allow sublicensing for GPL'd and then it might be compatible (might, since I'm by no means a GPL specialist and there may be other things in
the GPL which then cause problems), but this does not happen in practice (at least not that I know of).
And they'd definitely have to make sure it does not go for BSD-licensed software, since otherwise everyone can also include it in their closed source programs, which means no one will ever have to pay for it.
and non discriminatory is incorrect as it shuts out all open source software.
No, it shuts out all Free Software. It probably also shuts out a lot of open source software, but definitely not all of it (e.g. IBM can probably release CPL licensed stuff without any problem).
A small company can seek and win damages in the hundreds of millions if their invention is stolen.
You can also win the lottery. It generally doesn't work like that in reality. The reality is that a small company generally has no patents, does not steal anything from anyone, produces software, starts to sell it and then IBM or someone else comes knocking on the door asking for the equivalent of protection money.
Your way leaves them with no legal recourse if that happens. It's like you are saying, rape victims don't want to testify so lets not make rape illegal. Victims who want to testify still have the legal option available to them, just like small companies that have the money should have the option.
I think you should somehow compare it with Nazis, that would be much more convincing. Anyway, software patents are not a voluntary issue as you seem to believe. If they exist, you have to play the patent game to trade (cross licensing), and large companies (and patent parasites like Forgent) do start threatening small companies with lawsuits if they don't pay up.
Nope, it isn't per definition. A nice introduction is this presentation.
Banning software patents cuts both ways. It erases any built up patents large companies have amassed but it also strips any independent or small developer from the protection he needs when he implements his idea or algorithm.
This assumes that you have the funds to obtain a patent, and more importantly to enforce it in court. Are you aware that patent court cases in the US on average cost between 0.5 and 4 million dollars? (see slide 9) The major European SME associations, CEAPME and UEAPME are against software patents.
The small company protecting its assets with a patent from a large company generally simply doesn't work in practice. Suppose you do have the funds for a court case, even then the other side (e.g. IBM) will probably have ten times as many patents your programs infringe on, so they'll countersue you if you don't want to settle.
Have a look at how they treated Sun this way in the eighties...
The European Parliament also has veto power to reject it (in either first, second or third reading). In fact, that's exactly what they'll do if the Commission and Council gang up against them according to at least one MEP.
But if someone does come up with something truly unique that is expressed in software, how can this be legally protected so someone else doesn't steal your work after one or one-half year?
People cannot steal something which is not your property (intellectual or otherwise). The question is not what you or someone else as an individual wants or feels he/she deserves, but about what is best for the economy and innovation.
Study after study shows that software innovation does not happen because people want to get a monopoly, but because they have since otherwise the competition will catch up to them. The industry needs cheap, fast and narrow protections (similar to copyright), because patents are inherently so broad they are clogging up the system with thickets. The big companies aren't all cross licensing their patents just for fun.
Perhaps there should be no software patents at all, just some sort of legal copyright protection for 5 years or so. But how is that uniqueness defined anyway? At what point does a subsection of code become unique enough to be protected?
There is already copyright which provides for a protection until 75 years after the author's death. However, it only covers direct copying (partial or entirely), or plagiarizing (this can include reverse engineering and writing your own version based on the gained knowledge, if you don't take proper precautions)
Independent writing of a similar program (which simply does the same, but otherwise is in no way based on the original program) is not covered by copyright. That's a feature of copyright, not a bug. As such, copyright does give you a short time span on which you are alone on the market with that feature.
It definitely won't be 5 years in general, but even 5 years is an eternity in terms of software development.
Slashdot Mirror
As of yet, I have not yet followed the European Court of Justice, so I do not know how effective or ineffective it is. Have you?
Both the Parliament and the Council are strengthened. And the strengthening of the EP only makes them as strong as they in this particular directive process (codecision) in several other cases. Which means: still easily ignored by both the Commission and Council, with as only weapon to kill a directive process (but still very disadvantaged when it comes to changing the text of a directive).
Minister Marcinski was happy with all signatures that document got. It was purely informal, not some official petition which required European citizenship.
It would not make the Parliament more powerful than they are in the case of this directive. It moves more procedures into codecision, which is how the software patents is being handled today. And also gives the Council more power, with the justification that they are kept in check by national parliaments.
Over the past year, we have seen how "powerful" the EP is in codecision, with both the Council and Commission ignoring everything they say (first reading) or ask (restart). And today, we have seen how much the Council cares about opinions of national parliaments.
The constitution mainly puts more things under the codecision procedure (instead of consultation) and the EP indeed has more power their in theory. In practice, as you can see, the Council and Commission still do their best to ignore them.
The European Parliament and individual EU member states can lodge a complaint at the European Court of Justice, yes. Additionally, if the directive ever comes through, individual citizens can also lodge a complain at the European Court of Justice if they feel it tramples on their liberties.
And as someone else already said: the Council has adopted its "common position" (although it was far from common in this case). It still has to get into the European Parliament, through its second reading (where it can be amended or even rejected, after which the whole game is immediately over).
Anyway, as far as I am concerned, the big news is not what they adopted (a directive text which codifies the European Patent Office's US practice), but how they adopted it. Three countries with the support of several others asked to reopen discussions, and the Luxembourg presidency simply denied that even though they have to let the Council as a whole decide about that according to their own rules of procedure (point 3.8).
The goal is to promote science and the useful arts (which are beneficial to society, otherwise it wouldn't make any sense to hand out monopolies in the first place). Helping an inventor monopolise his work is just a means which may or may not contribute to that goal.
Patent law is a purely economic law (see page 9, numbered as page 5, of the pdf) designed to correct malfunctions in the default situation (namely the uncorrected free market).
Asking for a B-item means reopening discussions in the Council, which means the political agreement from May 2004 is null and void, leaving everyone finally free again to vote however they want (well, in theory they're free now as well, but due to diplomatic and political pressure they aren't). It means no A-item can again appear until there's a new qualified majority in favour of a new (or even the same) text.
It goes back to parliament only after the Council has adopted a Common Position (i.e., after reaching a political agreement, they adopt an A-item on it) -and then it's second reading in the EP-, or if the Commission restarts (in which case it's a new first reading in the EP).
Society has made a bunch of rules which patents must conform to in order to get as little patents as possible for which the downsides outweigh the upsides, and "skill" is just one of those criteria (in the form of the "non-obviousness" criterium, although it is a very low barrier).
It does not mean that everything smart should be patentable. Nobody has an "inherent right" to a patent due to work he performed. Society has concluded that patents on e.g. mathematical methods and scientific theories are generally not profitable for them (although it can take an enormous amount of skill to develop those).
It's similar with computer-implemented mathematics, business methods etc. You can find a bunch of studies on that subject here
He's everything but a free software spokesperson.
Could you send me an email? (email in header of this post, or info at softwarepatenten.be) Then we can see how your experience can be best used to inform politicians about the dangers of software patents. Thanks!
There is no way to do a "simple, quick and cheap patent search" will will turn up patents for everything you are doing in a computer program. In fact, that's one of the reasons it's virtually impossible to insure yourself against infringement on software patents, because there's no way for insurers to assess the risks properly (resulting in losses up to 3000% times for UK insurance firms which did offer such insurance for a while, such as Lloyds).
Anyway, UEAPME and CEA-PME represent respectively 11 million and 500,000 small guys, and they're both against.
75% of already granted European software patents are owned by US and Japanese companies. European companies have only something like 20% of all granted software patents.
US companies also patent processes implemented in software (to buy something with one click of a mouse, to load certain kinds of XML information, ...), and not individual computer programs.
A very nice report was published recently by the European Parliament's Directorate General on Economic and Social Policy, which completely debunks the "computer-implemented inventions are entirely different things that software", and which confirms that the European Patent Office's practice is not all that different from US practice.
The report is linked at the bottom of this PR.
Compressing an image is generally plain maths, and "mathematical processes" are not (should not be) patentable in Europe. Of course, the EPO (with the help of enterprising lawyers appealing to its Technical Board of Appeals) has found ways to interpret the European Patent Convention to get around this. I'm also not sure how you can say in general that "searching" is patentable.
I'd be very interested in seeing any numbers you have on this. Also, whether or not we have software patents in Europe is completely independent of those companies' abilities to get software patents in the US.
Patents are not about fairness, patents are economic means which can be used to correct an economic system running haywire due to relentless imitation. You do not introduce artificial monopolies in an economic sector because it's "fair".
You might want to look at this presentation by a lawyer and law scholar specialised in software patents on that. Trying to paint it as a "communists vs capitalists" is sooooo last 5 years (although Bill Gates doesn't seem to know that yet either).
Even if you unconditionally believe that any sort of intellectual creation should be associated with the broadest possible form of property rights, there's still the problem that software patents conflict with the property rights of software authors, granted to them by copyright. They prevent the normal exploitation of their works, which is even in conflict with the often cited TRIPs agreement.
Again, this has nothing to do with rewards, respect for work or whatever. It's
They do have pending patents on things like that all over the world, but of course that doesn't really mean anything (anyone can have a patent pending on pretty much everything, and even if granted that doesn't really mean all that much...)
Feeding herbivores the meat of their dead companions in fact is quite unhealthy for them, and is the (prime?) cause of mad cow desease and the related human desease Creutzfeld-Jacob. That's why it was banned in Europe, not because vegetarians, vegans or animal rights activists asked for it.
Now, if you incorporate such a standard in a Free Software (GPL) program (after paying), then it's free for all GPL programs in the world to use, because the GPL allows them to use your code and the GPL forbids requiring a payment for this (regardless of patents or whatever). In effect, you are sublicensing your RAND agreement to the entire Free Software community, and I don't think there is any RAND standard out there which permits sublicensing.
So in theory, a RAND standard could make an exception to allow sublicensing for GPL'd and then it might be compatible (might, since I'm by no means a GPL specialist and there may be other things in the GPL which then cause problems), but this does not happen in practice (at least not that I know of).
And they'd definitely have to make sure it does not go for BSD-licensed software, since otherwise everyone can also include it in their closed source programs, which means no one will ever have to pay for it.
The small company protecting its assets with a patent from a large company generally simply doesn't work in practice. Suppose you do have the funds for a court case, even then the other side (e.g. IBM) will probably have ten times as many patents your programs infringe on, so they'll countersue you if you don't want to settle.
Have a look at how they treated Sun this way in the eighties...
Here.
The European Parliament also has veto power to reject it (in either first, second or third reading). In fact, that's exactly what they'll do if the Commission and Council gang up against them according to at least one MEP.
Study after study shows that software innovation does not happen because people want to get a monopoly, but because they have since otherwise the competition will catch up to them. The industry needs cheap, fast and narrow protections (similar to copyright), because patents are inherently so broad they are clogging up the system with thickets. The big companies aren't all cross licensing their patents just for fun.
There is already copyright which provides for a protection until 75 years after the author's death. However, it only covers direct copying (partial or entirely), or plagiarizing (this can include reverse engineering and writing your own version based on the gained knowledge, if you don't take proper precautions)Independent writing of a similar program (which simply does the same, but otherwise is in no way based on the original program) is not covered by copyright. That's a feature of copyright, not a bug. As such, copyright does give you a short time span on which you are alone on the market with that feature.
It definitely won't be 5 years in general, but even 5 years is an eternity in terms of software development.