An AC wrote:
This contradicts Amendment 14 of Article 2 in the directive which simplified says:
a "computer-implemented invention" means an invention the performance of which involves the use of a computer and having features which are realised by means of a computer program
Article 2 in its present form is a Trojan Horse, not a washing machine.
Note that not all "computer-implemented inventions" are patentable. In particular, article 4 constrains the patentability of "computer-implemented inventions" as follows (emphasis by me):
In order to be patentable, a computer-implemented invention must be susceptible of industrial application and new and involve an inventive step. In order to involve an inventive step, a computer-implemented invention must make a technical contribution.
Member States shall ensure that a computer-implemented invention making a technical contribution constitutes a necessary condition of involving an inventive step.
I'm not sure if everybody realizes it, but if it is true, the most important part of the article is that supposedly Arlene McCarthy has finally agreed to include the "use of controllable forces of nature" as part of deciding whether an invention makes a technical contributions.
Let's backstep a few decades. By the late 70s/early 80s, the German Federal Court had to decide on a number of patent applications. One involved an accounting program, one a system for anti-lock brakes (which was controlled by software). They found the former unpatentable, and the latter patentable. The distinguishing criterion was that the anti-lock brakes taught new ways to control forces of nature, whereas the accounting program was essentially an "instruction for the human mind", even if it was executed by a "machine that was used according to its intended use".
With criteria for the patentability of these two extremes (a pure software solution, and a hardware solution with some tightly integrated software aspects) established, and technicality being the distinguishing criterion, and this state of affairs subsequently encoded in European patent law by saying that "programs as such" (as opposed to programs that were integrated with hardware solutions), the past few decades courts and patent offices started a battle over the gray area in between. The German Federal Court later allowed patentability increasingly to encroach on the software side, but the greatest abuse was done by the European Patent Office, which came up with more and more convoluted rationales to interpret the "as such" clause to allow for software patents, despite the clear legal precedent.
Now things are in the hand of JURI, the European Parliament's committee for Legal Affairs and the Internal Market. The initial committee proposal for the patent directive had a wishy-washy clause about something being a "technical contribution", that wouldn't have changed anything and harmonized nothing, and would have especially allowed the EPO to extend its creative twisting of the law even further. And with the planned enactment of the Community Patent, to be granted by the EPO, the door would have been wide open for EU-wide software patents. Note that the problem with the proposal was not so much that it allowed for software patents, but that it was poorly written law, with a million ways to interpret it. A number of clarifications -- including the "controllable forces of nature" criterion were proposed to JURI, but they were rejected.
So, if JURI finally concedes the point and allows for a proper, clear, and unambiguous criterion for technicality, that should alleviate quite a few concerns.
First, an "Abmahnung" is not a lawsuit. It's an out-of-court attempt to enjoin somebody (in this case a competitor) from doing something, in this case presumably continuing dishonest business practices. The case goes to court only if the competitor does not agree to discontinue the objectionable activity.
In essence, an "Abmahnung" is a cease-and-desist letter with teeth. If you receive one, you have the option to either agree to stop doing something AND to pay a heavy contractual fine if you violate this agreement; if you refuse, that the plaintiff can ask for temporary injunctive relief from a court.
This process is fast: typically you are given only 1-2 weeks to respond, and after that, temporary injunctive relief can be granted. Unless SCO can provide evidence for their claims, they will eventually be permanently enjoined from pursuing current anti-competitive practices.
Note also that under German anti-competitive law not only direct competitors can pursue this kind of legal action, but also various kinds of organizations that represent consumers or competitors (so-called passive legitimization).
(Disclaimer: This is somewhat simplified, I don't know all the details of the case, and finally, I'm not a lawyer.)
Murder carries a mandatory life sentence in Germany.
The German constitution specifically does not allow the death penalty. The framers of the constitution were so horrified by the abuse of the death penalty for political purposes both during the Weimar Republic and the Third Reich, that they saw no reason for keeping it.
Life sentences without the possibility of parole were found to be unconstitutional in a 1977 landmark decision by the constitutional court. The main reason was that article 1 of the German constitution states that "human dignity is inviolable", and to waste away in prison without any hope of redemption violated that principle.
The decision found in particular that almost all life sentences were commuted in practice by the state governments after 15 to 25 anyway, and noted that in this case the principle of the rule of law demanded that there be a democractically controlled process for parole rather than the whim of the governments.
But more important for the point at hand--European law being different from US American law--is that the whole judicial process (such as court structure) and the way the law is constructed is completely and utterly different in continental Europe. For example, Germany has entire court hierarchies for tax cases, work-related cases, social cases, and IP cases that are separate from the main hierarchy for civil and criminal trials. There are no juries in criminal cases--instead, part of the judges are laymen and -women, who have the same rights in the trial as regular judges, such as questioning a witness. A criminal trial is not adversarial as in the US (there is a prosecutor and a defense attorney, but their roles are subtly different: for instance, witnesses are primarily questioned by the presiding judge, and both prosecution and defense then have the right to ask questions as well). The prosecution can appeal a case even in a criminal trial--against the defendant, but also for him. Attorney fees are regulated and have to paid by the losing side (unless there's a settlement, of course). In Germany, a lawyer is not allowed to take a case on a contingency basis. The concept of punitive damages does not exist. And so on.
This is inaccurate insofar as "Abmahnungen" regarding trademark violations are the sole right of the trademark owner (section 14 MarkenG), as opposed to other unfair competitive practices, which can be handled by a wider range of organizations (section 13 (2) UWG). See also the recent message by von Gravenreuth on de.soc.recht.misc, Message ID <9hsqrg$evq$06$1@news.t-online.com> (in German).
In this case specifically it appears to be safe to assume that unless the lawyers are totally clueless they are acting on behalf of Adobe.
Slashdot Mirror
Note that not all "computer-implemented inventions" are patentable. In particular, article 4 constrains the patentability of "computer-implemented inventions" as follows (emphasis by me):
I'm not sure if everybody realizes it, but if it is true, the most important part of the article is that supposedly Arlene McCarthy has finally agreed to include the "use of controllable forces of nature" as part of deciding whether an invention makes a technical contributions.
Let's backstep a few decades. By the late 70s/early 80s, the German Federal Court had to decide on a number of patent applications. One involved an accounting program, one a system for anti-lock brakes (which was controlled by software). They found the former unpatentable, and the latter patentable. The distinguishing criterion was that the anti-lock brakes taught new ways to control forces of nature, whereas the accounting program was essentially an "instruction for the human mind", even if it was executed by a "machine that was used according to its intended use".
With criteria for the patentability of these two extremes (a pure software solution, and a hardware solution with some tightly integrated software aspects) established, and technicality being the distinguishing criterion, and this state of affairs subsequently encoded in European patent law by saying that "programs as such" (as opposed to programs that were integrated with hardware solutions), the past few decades courts and patent offices started a battle over the gray area in between. The German Federal Court later allowed patentability increasingly to encroach on the software side, but the greatest abuse was done by the European Patent Office, which came up with more and more convoluted rationales to interpret the "as such" clause to allow for software patents, despite the clear legal precedent.
Now things are in the hand of JURI, the European Parliament's committee for Legal Affairs and the Internal Market. The initial committee proposal for the patent directive had a wishy-washy clause about something being a "technical contribution", that wouldn't have changed anything and harmonized nothing, and would have especially allowed the EPO to extend its creative twisting of the law even further. And with the planned enactment of the Community Patent, to be granted by the EPO, the door would have been wide open for EU-wide software patents. Note that the problem with the proposal was not so much that it allowed for software patents, but that it was poorly written law, with a million ways to interpret it. A number of clarifications -- including the "controllable forces of nature" criterion were proposed to JURI, but they were rejected.
So, if JURI finally concedes the point and allows for a proper, clear, and unambiguous criterion for technicality, that should alleviate quite a few concerns.
First, an "Abmahnung" is not a lawsuit. It's an out-of-court attempt to enjoin somebody (in this case a competitor) from doing something, in this case presumably continuing dishonest business practices. The case goes to court only if the competitor does not agree to discontinue the objectionable activity.
In essence, an "Abmahnung" is a cease-and-desist letter with teeth. If you receive one, you have the option to either agree to stop doing something AND to pay a heavy contractual fine if you violate this agreement; if you refuse, that the plaintiff can ask for temporary injunctive relief from a court.
This process is fast: typically you are given only 1-2 weeks to respond, and after that, temporary injunctive relief can be granted. Unless SCO can provide evidence for their claims, they will eventually be permanently enjoined from pursuing current anti-competitive practices.
Note also that under German anti-competitive law not only direct competitors can pursue this kind of legal action, but also various kinds of organizations that represent consumers or competitors (so-called passive legitimization).
(Disclaimer: This is somewhat simplified, I don't know all the details of the case, and finally, I'm not a lawyer.)
A few points:
But more important for the point at hand--European law being different from US American law--is that the whole judicial process (such as court structure) and the way the law is constructed is completely and utterly different in continental Europe. For example, Germany has entire court hierarchies for tax cases, work-related cases, social cases, and IP cases that are separate from the main hierarchy for civil and criminal trials. There are no juries in criminal cases--instead, part of the judges are laymen and -women, who have the same rights in the trial as regular judges, such as questioning a witness. A criminal trial is not adversarial as in the US (there is a prosecutor and a defense attorney, but their roles are subtly different: for instance, witnesses are primarily questioned by the presiding judge, and both prosecution and defense then have the right to ask questions as well). The prosecution can appeal a case even in a criminal trial--against the defendant, but also for him. Attorney fees are regulated and have to paid by the losing side (unless there's a settlement, of course). In Germany, a lawyer is not allowed to take a case on a contingency basis. The concept of punitive damages does not exist. And so on.
This is inaccurate insofar as "Abmahnungen" regarding trademark violations are the sole right of the trademark owner (section 14 MarkenG), as opposed to other unfair competitive practices, which can be handled by a wider range of organizations (section 13 (2) UWG). See also the recent message by von Gravenreuth on de.soc.recht.misc, Message ID <9hsqrg$evq$06$1@news.t-online.com> (in German).
In this case specifically it appears to be safe to assume that unless the lawyers are totally clueless they are acting on behalf of Adobe.
-- Reimer Behrends