FITUG e.V. Förderverein Informationstechnik und Gesellschaft

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

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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.

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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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