Congrats Europeans! [LWN.net]

Congrats Europeans!

Posted Aug 29, 2003 23:19 UTC (Fri) by Carl (guest, #824) [Link]

The problem is that we already have lots of software patents here :(

But that is precisely the point! The European Patent Office (EPO) has illegally granted these patents against the letter and spirit of the current law. National judges in several European countries have criticised the EPO's practise and refused to recognize these patents as valid. Now this commission wants to "harmonize" the national laws to force the different countries to adopt laws which (retroactively) make these patents legal.

By casting this as a simple law harmonization issue the Legal Affairs Committe is trying to make this a small issue and saving the EPO some embarrassment when the big companies (Microsoft and IBM are the biggest holders of these illegal patents) find out that they have worthless papers.

But it is a really big change since currently "discoveries, scientific theories, mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, programs for computers, and presentations of information" are all clearly not patentable according to Art 52 of the European Patent Convention. The committee tries to just remove these clear exceptions and introduce some (ill formulated) new exception rules which are more in line with what the EPO has been doing but which judges just don't accept! (http://swpat.ffii.org/analysis/epc52/index.en.html)

BTW I thought the "Test Suite" that the ffii/eurolinux people came up with was pretty good: http://swpat.ffii.org/analysis/testsuite/index.en.html and http://www.ffii.org/proj/kunst/swpat/pamflet/europarl03-testbed.en.pdf It presents some of these patents that the EPO has illegally granted in the past and asks some simple questions be answered:

Is this an algorithm?
Is this a business method?
Is there a "technical contribution"?
Should this innovation be patentable subject matter?
Does your favorite proposal clearly say so?

And very important:

Would any judge reach the same conclusions?
Where are areas of incertainty?

Hopefully now that the proposal seem to be redrafted someone will take the time to answer those questions so a real decission on whether this "clearification" of the European Patent Convention is a good idea or not.

Congrats Europeans!

Posted Aug 29, 2003 14:42 UTC (Fri) by wookey (subscriber, #5501) [Link]

You are right but it would help a great deal if you could take a little time to explain the problems you are experiencing in the US to some MEPs.

In general MEPs think the US is doing better than us (the EU) at software (IBM, Microsoft, Sun) and jumps to the essentially false conclusion that we must have software Patents here to catch up. The fact that Microsoft's dominance has nothing to do with patents is glossed-over. The increasing complaints coming from the US about the system don't seem to be sinking in yet.

Hard facts from real American developers/business owners about the badness of swpats would be very useful amunition. Who to send such missives to? If you send them to me I'll try to get them sent somewhere useful. The FFII http://swpats.ffii.org/ maintain lists of who to hassle at the EU, and would love any contributions you can make. Sending them to Arlene McArthy is nominally the correct place but I suspect she is not persuadable.