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Hollaendische Parlamentarier: Swpat des EPA nicht akzeptabel

Bei einer Anhoerung im niederlaendischen Parlament wurde gestern
beschlossen, dass jede gesetzliche Neuregelung zur Frage der
Softwarepatente Kriterien nennen muss, wie man den Grossteil der ca 30000
EPA-Softwarepatente eliminieren kann.  Solange dies nicht mit anderen
Kriterien wie z.B. Erfindungshoehe erreicht wird, muss die grundsaetzliche
Nicht-Patentierbarkeit von Software bleiben, so die hollaendischen

Der hollaendische Verband der Softwarebranche FENIT liess sich von
Patentjuristen der in ihm aktiven Grossfirmen vertreten.  Aehnlich wie der
spanische Verband ANIEL und der deutsche ZVEI u.a. haben sie bei allen
Anhoerungen/Konsultationen den ueblichen Glauben der Patentbewegung
verkuendet.  Doch das hollaendische Parlament hat den Ruf, auch mal aus
der Reihe zu tanzen, um den kluegsten Schueler in der Klasse zu spielen.

Argumentation weitgehend ueberzeugen.  Auf ihren Webseiten (vosn.nl)
verweist sie auf http://swpat.ffii.org/, und sowohl das

	Gruselkabinett der Europaeischen Softwarepatente

als auch das Argumentationspapier

	Why Software Patents are So Trivial

fanden bei den hollaendischen Konsultationen einige Beachtung.

---------- Forwarded message ----------
Date: Thu, 15 Feb 2001 22:04:29 +0100
From: Luuk van Dijk <Luuk.van.Dijk@xs4all.nl>
To: discussie@opensource.nl, patents@aful.org
Subject: [Patents] Dutch MP's demand triviality criteria in the law before
    allowing SW pats


The conclusion of a closed hearing today between
members of the Commitee for Economic Affairs of the
Dutch parliament, representatives of the VOSN (www.opensource.nl)
and of the FENIT had an encouraging conclusion, we think.

Despite the FENIT's initial plea in favour of SW pats,
the MP's were not fooled and intend to instruct the
Dutch secretary of state of Economic Affairs thusly:

	* first strict criteria for novelty, non obviousness and
innovativeness are to be drawn up and put into the law, (if possible)
	* only then should the ban on software patents be lifted

Their motivation was that novelty and non-obviousness are currently
unapplied criteria, and that the explicit ban on swpats is the last
barrier against the 30.000 garbage patents and more to come.

The MP's recognize the special position of software versus other
fields of technology as a means to patent *anything* "with a computer",
and a field where vague ideas are cheap and shotgun approaches to
obtaining patents are feasible yet undesirable business strategies.

The FENIT was kindly asked to investigate the formulation of these
criteria with the VOSN. They also propose that the 30.000 will be
checked against these new criteria.  All parties involved realize
that this is a relative novelty in the IP law.  We'll see what
happens on a EU level next, I guess...


Also note that bad or no criteria will mean not allowing swpats,
as far as dutch parliament is concerned.  In that case, the MP's
expressed interest in 'clarification' of artcl 52 by reformulating
rather than by eliminating the text.

Attached is a slightly more detailed report on the meeting,
on the VOSN website there will appear a statement from Rik Hindriks,
the MP that formulated the proposal (in dutch).

On behalf of the VOSN,
	Luuk van Dijk
Wednesday 14 feb and thursday 15 feb 2001, two meetings took place in
the Netherlands between the VOSN and Dutch decisionmakers on the topic
of software patents, one with the ministry of Economic affairs, and
one with te Committee for Economic affairs of the dutch Second Chamber
of parliament and the FENIT.

This is a short report on the second of these meetings to inform our
members and interested parties on the efforts of the VOSN.

Luuk van Dijk


thursday 15 feb, 10:00-11:00, at the offices of the Tweede Kamer. 
- drs. D.Hindriks (MP for PvdA)
- drs. M.Udo (MP for VVD)
- dhr. de Roode (FENIT, the dutch IT branche organization)
- mr. P.van Schelven (spokesman legal affairs FENIT)
- dr. R. Walker (KiQ, an innovative startup)
- dr. L.van Dijk (VOSN)
- drs. R.Tolido (Manager Technology Consulting, Cap Gemini Ernst &
Young NL)

Mr. Tolido had to cancel at the last moment but had sent an email to
all present stating his regrets to be unable to attend the hearing and
his concerns, as an IT professional, with the intentions to strike the
restriction on software patents and with the level of triviality in
the 30.000 already granted european patents on software. (text

Invited to present its arguments, the FENIT kicked off arguing that
currently, patent attorneys had to bend the rules considerably to get
patents on software approved.  The unclarity about whether software was
patentable or not led to -- in the eye of the FENIT -- a regretful
number of patents on software not being granted or even not being
applied for.  To the FENIT it would be most welcome if the current
practices of the patent offices to grant patents on software were
sanctioned by striking this obstacle from the law.

Mr. Hindriks inquired what the problem was in all this unclarity, and
why this unclarity ought to be resolved by removing the restriction on
software patents entirely, and pointed out to the representatives of
the FENIT that it was not at all in the interest of FENIT's members to
have lots of trivial little patents to hamper programmers in their
every days work.

Mr. Hindriks also stated that the MP's had been convinced by a recent
visit to the dutch patent office that the newness and innovativity
criteria were no longer applied.  He agreed with the VOSN that given
the sorry state of the newness and innovativity criteria, the explicit
ban on software patents currently was the last threshold against the
"30.000 landmines" of already granted software patents becoming a fact.

The VOSN brought to the attention that with the additional argument:
"anything done with a computer is technical", patent attorneys could
grant patents on inherently non-technical business methods, as long as
a computer was involved.

The FENIT agreed that patents should be stricktly reserved for the
technical domain.

Mr. Hindriks supplied examples from his own professional past in the
industry that large companies have a significant advantage in the
possibility to deploy lawyers to hassle the competition with
infringement claims.

Finally Mr. Hindriks proposed that the parliament adopt the following
position on the matter, expecting broad support among other fractions:

	 - the secretary of state is to provide, in the law, efficient
	 thresholds against trivial and elementary patents on software

	 - the industry, i.e. the FENIT and the VOSN are to propose
	 such criteria.

	 - *only if* clear and enforceable rules to this effect were
	 present, the restriction on software could be struck from the
	 patent law.  If such a new protection, could not be built in,
	 the secretary of state would be instructed to oppose striking
	 the ban on software patents from the law, as it does serve as
	 a last threshold against undesired patent abuse.

The FENIT remarked that such thresholds on newness and innovativity
would be a completely new thing in patent law.

Mr. Hindriks reacted positively on the suggestion from the VOSN that
if the criteria failed to be formulated in the law, it might perhaps
be possible to clarify article 52 by reformulating, rather than by
eliminating the text, and he would welcome a proposal along those

The MP's expressed their sincere hope that `the industry' i.e. the
VOSN and the FENIT would come with a unanimous recommendation for
non-triviality standards, so the VOSN and the FENIT agreed to meet
soon to see how such standards could be formulated. The VOSN intends
to do its best in formulating clear and sharp criteria to protect
everyday programming from the threats of monopolies.

On the whole the VOSN is happy with the proposals by Mr. Hindriks and
Mr. Udo, since the triviality and elementary-ness is our greatest
objection against software patents.  Furthermore, the MP's clearly
took the view that if such criteria are not built in to the law, it is
better not to have software patents at all, possibly at the cost of a
few worthwhile inventions, than to do have them at the expense of all
SMEs in the IT sector.