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[FYI] (Fwd) FC: Eurolinux letter to European Commission against soft

------- Forwarded message follows -------
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

   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)


     * Replies to the EC swpat consultation -

     * The Eurolinux Software Patent Consultation Page -

     * Eurolinux Petition for a Software Patent Free Europe -

     * Patents - http://swpat.ffii.org/vreji/pikta/index.en.html

     * EC Directive Proposal -

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:


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   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


From: sf@fermigier.com
Subject: Eurolinux Open Letter to the European Commission Concerning
 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
     * 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

   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


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

   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

   Yours sincerely

   Jesus Gonzales-Baharona
   Stéfane Fermigier
   Anne Östergaard
   Nicolas Pettiaux
   Hartmut Pilch
   Jean-Paul Smets
   Luuk Van Dijk

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   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.


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