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[FYI] (Fwd) FC: Eurolinux letter to European Commission against soft
- To: debate@fitug.de
- Subject: [FYI] (Fwd) FC: Eurolinux letter to European Commission against soft
- From: "Axel H Horns" <horns@ipjur.com>
- Date: Tue, 13 Mar 2001 18:20:24 +0100
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Date sent: Tue, 13 Mar 2001 10:27:37 -0500
From: Declan McCullagh <declan@well.com>
To: politech@politechbot.com
Subject: FC: Eurolinux letter to European Commission against software patents
Send reply to: declan@well.com
************
From: sf@fermigier.com
To: declan@wired.com
Subject: Eurolinux Proposals for EC Consultation on Software Patents
Date: Tue, 13 Mar 2001 08:51:42 +0100 (CET)
Eurolinux Proposals for EC Consultation on Software Patents
The Eurolinux Alliance has sent a letter to the European
Commission, asking them to resume consultations on software
patentability which seem to have been interrupted.
Munich, Brussels, Amsterdam and Leipzig
The Eurolinux Alliance has sent a letter to the European
Commission, asking them to resume consultations on software
patentability which seem to have been interrupted.
The European Commission had called for submission of statements on
the question of how software should be treated by the patent
system. Between Oct 15 and Dec 15 more than 1000 programmers had
sent statements describing the negative impact of software patents
on their work and calling on the European Commission to put an end
to the practise of the European Patent Office (EPO), which has, in
violation of the letter and spirit of European patent law, granted
approximately 30000 patents on problems of program logic.
At the European Commission, the Directorate for the Internal Market
(DGIM) is in charge of patent affairs and of the consultation. The
patent law experts in charge at DGIM have during the past few years
fully supported the position of the European Patent Office. The
consultation paper published by the DGIM accurately restates this
position. On Dec 21, the DGIM has hosted a conference of selected
patent experts from the national governments and the European
Patent Office, who unanimously encouraged the DGIM to go ahead and
prepare a directive soon, so as to impose the practise of the EPO
on national patent courts, many of which have been very reluctant
to grant software patents.
The Eurolinux Alliance of software companies and non-profit
associations holds the "European Patent Corporation" responsible of
having "illegally littered the information highway" with a "big
pile of poisonous waste", a "Horror Gallery of European Software
Patents".
Frank Hoen, CEO of Netpresenter, the Dutch inventors web push
technologies, explains:
Patenting software ideas is like prohibiting the use of certain
structure elements in the plot of a novel. It is ridiculous,
because the difficulty does not lie in thinking up the individual
elements but in putting together a well-formed complex work. If
the EPO has its way, every one of our software projects will have
to be followed by a few hundred expensive patent applications.
And even then, we are at the mercy of predators who don't write
software but just engage in the lucrative business of milking the
software industry.
Xuan Baldauf, CEO of Medianet GmbH in Leipzig and speaker of the
Federation for a Free Information Infrastructure (FFII) adds:
The patent lawyers at the Euoropean Commission are about to
deprive us of our copyright to our own programs. At least they
are making copyright worthless. And they are abolishing our
freedom of expression. Just because programmers are a minority
and most people are not fully aware of the nature of programming,
these patent lawyers seem to believe that they can get away with
stripping us of basic civil rights. They are acting against the
Europe's legal tradition, which prohibits the patenting of
programming solutions and, in general, any solution which can be
validated by pure logic, without testing the effect of natural
forces. The patent lawyers at the European Commission know this.
They use traditional legal terms such as "technical character"
and "technical contribution". But these terms no longer mean
anything. They have been reduced to the status of political
codewords. This reminds me of our politbureau of former days.
Honnecker's friends spoke a lot about "people's democracy",
"socialist realism" etc. Ten years after the peaceful revolution,
I am surprised to meet again the same ambivalent Orwellian
Newspeak, the same docile faith in party dogma, the same defiance
of law and economics, the same reluctance to consult the public.
Meanwhile, the EC consultation has apparently stalled, and only a
tiny fraction of the submitted consultation papers have been
published on the DGIM website.
Figures about the Petition for a Software Patent Free Europe
Number of Signatures:
> 70000
Number of corporate sponsors:
> 200
Number of signatures by country:
Germany (16663), France (11824), Spain (3959), Italy (3586),
Denmark (3236), Sweden (2370), Netherlands (2119), Austria
(1836), Belgium (1810), Switzerland (1440), Finland (1360),
Czechia (974)
Number of individual signatures by company:
Siemens (112), IBM (109), Ericsson (97), Cap Gemini (82),
SuSE (81), Nokia (71), France Telecom / Wanadoo (71),
Alcatel (66), Hewlett Packard (52), Atos (48), MandrakeSoft
(47), SNCF (French Railways) (30), ID PRO (30), Deutsche
Telekom (29), SAP (29), Sun Microsystems (26), Oracle (21),
EDF (21), innominate AG (21), Lucent Technologies (21), CERN
(20), debis (20), Alcôve (18), Belgacom / Skynet (17),
Nortel (17), Cisco (14)
References
* Replies to the EC swpat consultation -
http://europa.eu.int/comm/internal_market/en/intprop/indprop/so
ftreplies.htm
* The Eurolinux Software Patent Consultation Page -
http://petition.eurolinux.org/consultation
* Eurolinux Petition for a Software Patent Free Europe -
http://petition.eurolinux.org/
* Patents - http://swpat.ffii.org/vreji/pikta/index.en.html
* EC Directive Proposal -
http://swpat.ffii.org/stidi/eurili/indexen.html
About EuroLinux - www.eurolinux.org
The EuroLinux Alliance for a Free Information Infrastructure is an
open coalition of commercial companies and non-profit associations
united to promote and protect a vigourous European Software Culture
based on Open Standards, Open Competition and Open Source Software
such as Linux. Corporate members or sponsors of EuroLinux develop
or sell software under free, semi-free and non-free licenses for
operating systems such as GNU/Linux, MacOS or Windows.
The EuroLinux Alliance has co-organised in 1999, together with the
French Embassy in Japan, the first Europe-Japan conference on Linux
and Free Software. The EuroLinux Alliance is at the initiative of
the www.freepatents.org web site to promote and protect innovation
and competition in the European IT industry.
Press Contacts
France and Europe:
Stéfane Fermigier, sf@fermigier.com
Germany and Europe:
Hartmut Pilch, +49-89-18979927
Denmark and Northern Europe:
denmark@eurolinux.org
Belgium:
belgium@eurolinux.org
Permanent URL for this PR
http://www.eurolinux.org/news/pr0101
Legalese
Linux is a registered trademark of Linus Torvalds.
Windows is a registered trademark of Microsoft Inc.
MacOS is a registered trademark of Apple Inc.
All other trademarks and copyrights are owned by their respective
companies.
************
From: sf@fermigier.com
Subject: Eurolinux Open Letter to the European Commission Concerning
Software
Patents Consultation
To: declan@wired.com
Date: Tue, 13 Mar 2001 08:50:30 +0100 (CET)
Eurolinux Open Letter to the European Commission Concerning Software
Patents Consultation
The EuroLinux Alliance is quite surprised that the European
Commission's Software Patent Consultation webpage seems to be
stagnating since December. What is even worse, the Directorate for
the Internal Market seems determined to go ahead with legalising
software patents before conducting any consultation. The
signatories spell out some basic requirements for a European
Directive on the Limits of Patentability regarding Software and the
way to get there. It describes a few test criteria and sets of test
samples, against which any directive proposal is to be measured.
To: Frits.Bolkestein@cec.eu.int
Cc: Erkki.Liikanen@cec.eu.int
Dear Sir, Dear Madam
We are surprised to note that your [1]software patent consultation
webpage seems to be stagnating since December. Moreover we are
concerned about recent news that the Directorate for the Internal
Market is seeking a mandate from national governments to draft a
pro software patent directive without first concluding the
consultation process. In view of this situation, we beg to propose
the following:
* Conduct a serious consultation first!
* Judge the Directive by its effect on a set of existing
borderline
cases!
* Courageously eliminate the minority of non-technical patents! *
Starting points for drafting a directive
Conduct a serious consultation first!
The letters submitted during the consultation should be published
on the Internet immediately. This consultation round should then be
concluded by a public hearing including some of the main
participants, to with all concerned politicians at the ministerial
and parliamentary level should be invited. Only after that can an
order for the preparation of a draft directive be possibly given.
So far, only very few of the numerous submissions sent to you
through our gateway (consultation@eurolinux.org) have not been
published on your site. All submissions sent through our gateway
should be considered as public except if mentioned otherwise. All
other submissions will hopefully also be published, so that are
open to public questioning and criticism, i.e. become part of a
public consultation process. We can think of no reason for the
delay. If preparing a nice website is time-consuming, why don't you
just publish the raw materials in their original electronic form
(or graphical files in case of paper submissions), so that others
can do the work independently?
In its invitation paper to government representatives, the DGIM
claims that software patents are wanted by all the major trade
associations, who "represent an overwhelming majority of European
companies", while apparently only a loud minority of open-source
programmers opposes software patents. Not only does the DGIM fail
to mention that the Eurolinux Alliance is supported by numerous
non-opensource companies of considerable size. It is moreover our
experience that the quoted trade associations have no position
whatsoever on software patents and, when asked, just hand over the
question to their patent lawyer, who is usually a loyal member of
the patent movement, characterised by a common credo of "the more
patents the better" and complete disregard or even ignorance about
the reality of software patents. Contrasting with this, the people
in charge of R&D investment decisions in almost all enterprises,
even large ones of the telecommunications sector such as Siemens
and Philips, usually consider software patents more harmful than
useful. But usually nobody would ever consult them. One exception
to this has been a recent [2]British field study about patents in
general, which concludes that they are "at best useless" in
promoting innovation in SMEs.
Under these circumstances, in order to conduct a correct
consultation, it is absolutely necessary to reveal the identity
those trade associations who allegedly support software patents and
organise a real discussion. This is especially necessary in the
current situation where those who are charged with moderating this
discussion have in the past repeatedly shown themselves to be
faithful members of the patent movement.
Judge the Directive by its effect on a set of existing borderline
cases!
The directive will be judged by its effect on the software and
business method patents that have so far been granted by the
European Patent Office. How many of these will be upheld in court
in the future? Which kinds of patents will be rejected?
Whatever the EU directive will be, it must be accompanied by a
paper that cites a test sample of 50-100 EPO-granted
software-related patents and shows how they would be judged
according to the new directive proposal. A possibly suitable set of
borderline cases would be
[3]http://swpat.ffii.org/vreji/pikta/txt/ep1.en.html
Courageously eliminate the minority of non-technical patents!
Most of the patents in a [4]list of 10000 European software patents
compiled the FFII look rather scary -- in no way better than even
the most trivial American software patents. Any new directive
should be designed in such a way that such patents no longer stand
a chance of being upheld in European courts. This could be achieved
by formulating clear standards for either technicity or inventivity
or both. It is self-evident that the current practise of the EPO
cannot provide such a standard. Unfortunately the consultation
paper of the DGIM is only a restatement of EPO practise. Like the
EPO, it talks a lot about "technical contribution" but at the same
time fails to provide a meaningful definition for distinguishing
"technical" from "non-technical" contributions.
As shown by a [5]preliminary study, a clear technicity standard
could be used to reject the unwanted software patents without
affecting the others, leading only to a rejection of about 3% of
the current patent applications of the EPO. In view of the fact
that the number of applications is swelling by a daunting 10% p.a.,
this type of soft reform may be welcomed even by the EPO.
In view of [6]the overall poor performance of the patent system as
a promotor of innovation, addressing only the technicity issue may
be too soft an approach. Yet it is probably all that can be done
within the scope of the currently envisaged directive.
Starting points for drafting a directive
The Eurolinux Alliance has published a directive proposal as part
of its submission to the EC consultation:
[7]Regulation about the invention concept of the European patent
system and its interpretation with special regard to programs for
computers
The Eurolinux regulation proposal gives a clear interpretation for
the current law, which corresponds to the traditional viewpoint of
many patent law experts, as it is still upheld by some European
lawcourts, such as the 17th Senate of the German Federal Patent
Court (BPatG).
Moreover the Eurolinux regulation proposal has a desired effect of
eliminating approximately 30000 out of 1 million European patents,
as was shown by the above-mentioned study currently conducted by
the FFII.
The Eurolinux regulation proposal should therefore be taken as one
of the starting points from which to build a European Software
Patent Directive. In case special anti-cloning protection is really
demanded by the software industry, as the DGIM claims in its
invitation paper, Mark Paley's [8]Model Software Patent Act could
provide a useful source of inspiration.
We moreover propose that some of the judges of the 17th Senate of
the German Federal Patent Court be consulted in drawing up the
Directive. If possible, some less faithful and more critical patent
professionals like Dr. Kiesewetter-Köbinger, a former programmer
and current patent examiner at the German patent office who has
written an [9]particularly lucid analytical paper on the software
patentability question, should be called to Brussels to help draw
up a draft directive.
We would feel very obliged if you seriously pursue the consultation
and do everything in your might to identify and defend the public
interest.
Yours sincerely
Jesus Gonzales-Baharona
Stéfane Fermigier
Anne Östergaard
Nicolas Pettiaux
Hartmut Pilch
Jean-Paul Smets
Luuk Van Dijk
Permanent URL for this document
http://www.eurolinux.org/news/pr0101/dgltr/indexen.html
References
1.
http://europa.eu.int/comm/internal_market/en/intprop/indprop/softre
plies.htm 2. http://info.sm.umist.ac.uk/esrcip/background.htm 3.
http://swpat.ffii.org/vreji/pikta/txt/ep1.en.html 4.
http://swpat.ffii.org/vreji/pikta/txt/index.en.html 5.
http://swpat.ffii.org/vreji/pikta/txt/epr10002.en.html 6.
http://swpat.ffii.org/vreji/minra/siskuen.html 7.
http://swpat.ffii.org/stidi/eurili/indexen.html 8.
http://members.aol.com/paleymark/ModelAct.htm 9.
http://swpat.ffii.org/vreji/papri/patpruef/indexen.html
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