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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Tuesday, July 20, 2004A Storm in a Teacup.The German Government is currently again contemplating the pros and cons of the patentability of computer-implemented inventions. This is not quite "business as usual" because of at least in theory  the dice is cast on the level of the EU Competitiveness Council held in Brussels on May 17 to 18, 2004. A political vote had been cast which was closer to the original proposal "Common Approach" of the EU Commission and of the EU Council than to the outcome of the first reading in the European Parliament. The normal course of events to be expected would be that the political vote of the EU Competitiveness Council is confirmed by the European Council and then mailed to the President of the European Parliament in order to initiate the procedure of second reading. But apparently this has not happened yet at least as I can see in the public EU databases. I do not know why there is such a delay; maybe the recent European Council held on June 17 and 18, 2004 had been just too busy with deliberating the EU Constitution as well as with finding a new President for the EU Commission. Other sources might prefer to bring such delay in connection with certain difficulties in the Netherlands.
Anyway, the German Ministry for Economic Affairs and Labour Market (BMWA) has jumped in to fill the gap, asking the Laboratory of Distributed Systems and Information Security at the Gelsenkirchen Polytechnic to conduct a survey in order to research the mood of the German software-related industry concerning various aspects of related to the patentability of computer-implemented inventions. The questionnaire is freely available on the web in various formats for download, and the Government asks to return the filled-in paper by July 29, 2004.
Of course any research efforts done to empirically uncover the economic circumstances of the patent system are most welcome in order to improve the same. However, it must be undertaken in a methodically clean way. In this case, it is inevitable that no significant and meaningful quantitative analysis of the returning questionnaires will be possible. If the survey would have been prepared in a respectable way, a random sample would have been drawn from all of the relevant companies operating in Germany, and the distribution of the questionnaire would have been limited to that sample. However, in the present situation, the anti-patent activists - who are absolutely Internet-savvy - have made enormous efforts in order to ensure a wide circulation of the questionnaire in the patent-averse circles around the FFII. Some activists even started an anti-patent campaign within one of the upcoming Internet-based social networking systems, i.e. OpenBC. It is absolutely clear that other industry associations working in a more conventional way are rather forlorn in this race. Most of the questionnaires returned by the very close deadline will come from freelancers or companies close to the FFII, and the result will be accordingly. Hence, it is to be expected that a vast majority of the questionnaires to be returned will exhibit a more or less patent-averse mood. All the efforts of the German Govt will therefore bring a result which is as far as quantitative aspects are concerned as reliable as any click-through survey on the web. As everybody knows, such polls are simply not representative.
So, what I did was to express this opinion in various mailing lists and other fora. In response thereto, some FFII activists attempted to stage a major arousal of public disgust, thereby causing Stefan Krempl to mention the controversy in the Heise Newsticker.
Miraculously Dr. Sandl, Senior Official in the BMWA and originator of the survey project, raised his voice in a public mailing list and responded to the discussion of the methodical problems thereof, indicating his interest in unadulterated quantitative results. However, with regard to the lack of a random sample and related problems, he merely shrugged his shoulders, indicating that he is well aware of such methodical problems.
So far not much has happened. But if you should read in August 2004 or so some hot news saying that the German software industry has voted with a majority of, say, 90% of the companies that so-called "software patents" are evil, you should be somewhat cautious.
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