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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Tuesday, November 30, 2004Mr. John Collins on Mr. Torvald's Understanding of Intellectual Property Law. THE INQUIRER writes about the latest  nosoftwarepatents.com propaganda coup:"[...]John Collins, a partner at UK firm Marks and Clerk said: 'Torvalds and his supporters lack a fundamental understanding of intellectual property rights as they seem to be unaware that copyright can only protect software code and not software'.There is little to add to Mr. Collin's assessment. However, it should be pointed out that the term 'open source developers' might be a bit fuzzy or even inexact within this context - there are also open source developers employed by companies exercising an active patent policy. Moreover, the patentability of computer-implemented inventions is also challenged by representatives of companies not creating open source software but perhaps wanting to have a free ride with regard to valuable inventions of third parties. Maybe that Eurolinux Alliance, FFII e.V., FSF, and Attac are more appropriate keywords when a more precise description of anti-patent campaigners is sought.
Draft Directive on Computer-Implemented Inventions: Draft Document on EU Council's Reasons.Today, the EU Council has publishedDocument 11979/04 ADD 1 concerning the common position adopted by the Council with a view to the adoption of a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions. The Document comprises a Draft statement of the Council's reasons."[...] In its common position, the Council has taken over a considerable number of amendments proposed by the European Parliament. Throughout the common position, the Council has sought to strike a reasonable and workable balance between the interests of rightholders and those of other parties concerned. The overall balance of the Council’s common position has been acknowledged by the Commission, which has accepted it as a satisfactory compromise package." A Remark on the "Micro Site" of the Administrative Council of the European Patent Organisation.Several months ago, theAdministrative Council of the European Patent Organisation launched a so-called "micro site" of its own under the umbrella of the Official EPO web site. I have very much welcomed such a move. In particular, it looks far sighted that many Official documents open to the general public can now be disseminated easily. However, today it looks as if there would be some cause for a modest disappointment because of despite the fact that the recent session of the Administrative Council had been closed last week on Friday, November 26, 2004, up to today there is no word of any results visible on that micro site. I think that many people interested in Intellectual Property politics would warmly appreciate if the Administrative Council could exercise some more transparency, e.g. by publishing the agendas of the sessions in advance as well as delivering at least a press statement after closure of the session just on said micro site.
Monday, November 29, 2004EPO expects dynamic Increase in Patent Filings in Europe"[...] The President of the European Patent Office, Mr. Alain Pompidou, highlighted the dynamic growth of the European patent system saying that this year the European Patent Office expects a record number of nearly 180,000 patent applications. He said that in order to manage the flow from technological knowledge to innovation and from innovation to the market place, the EPO had to develop high-quality business tools. epoline®, the EPO's digital business interface, facilitates the innovation process by providing a single access point for applicants and the public to the patent system. In 2004, 16% of all European patent applications were filed via the Internet, compared to 10% in 2003. [...]" Read more ...
Friday, November 26, 2004U.S. government will fight proposals that aim to 'fundamentally change the WIPO charter and philosophy'.FromIntellectual Property Watch:"In an October 15 speech, the Director of the U.S. Patent and Trademark Office (USPTO), Jonathan Dudas, vowed that the U.S. government will 'fight' proposals that aim to 'fundamentally change the WIPO charter and philosophy' away from its current focus on the promotion of intellectual property. Read more ...
See also my earlier postings here and here.
Thursday, November 25, 2004Germany: Multi-Partisan Draft Resolution concerning Patentability of Computer-Implemented Inventions.The FFII e.V. has obtained adraft version [in German only, sorry] dated November 10, 2004 of a multi-partisan resolution of all four parliamentary groups (Social Democrats, Greens, Christian Democratic Union plus Christian Social Union, and Liberal Democrats) to be tabled to the plenary of the lower chamber ("Bundestag") of the German Parliament later this year or early in 2005. Heise Newsticker reports that a compromise text has now been worked out which allegedly differs only slightly from the draft version as published by the FFII.
Basically, the draft resolution supports that computer-implemented inventions should be patentable. However, the parliamentarians are unhappy with the EU Council's version and want particularly to see the underlying concept of "technicality" defined more precisely. Especially, the parliamentarians want to see definition(s) of technicality used by the German Federal Supreme Court ("Bundesgerichtshof", BGH) to be exported into the EU. However, the draft resolution is not unambigous so far as to which of the various definitions of technicality used throughout the years by the BGH should be taken as a basis for such undertaking. The anti-patent campaigners surely assume that it will be the phrase from the 1969 "Red Dove" decision which is also mentioned in the introductory portion of the draft resolution:"Technicality is to be attributed to a teaching for a methodical action utilising controllable forces of nature for achieving a causally predictable result which is the direct consequence of said utilisation of controllable forces of nature without interposition of action of human brain."But there also different approaches. For example, in the decision "Verification of Logic Constraints" the BGH concedes that "[...] a proposal for a solution concerning an intermediate step within a certain process [...] shall not be excluded from patentability just because of this proposal for a solution does not require direct utilisation of controllable forces of nature, provided that said solution seeks to push forward options for the manufacturing of suitable products ulterior by means of insights based on technical considerations. [...]."The item 4 of the draft resolution merely requests that the Draft Directive should be "Oriented towards the definition of technicality of the BGH" whatever that might mean within this context. Of course, the 1969 BGH attempt to define technicality is now widely seen as obsolete and outmoded as can best be demonstrated with regard tho the particular younger case underlying the "Verification of Logic Constraints" decision. There are no serious reasons why such a LSI circuit verification system should not be patentable as a stand-alone device but surely be patentable if claimed together with a chip production facility which clearly involves "controllable utilisation of forces of nature". The attempt of the anti-patent campaigners to curb the interference of patent law with computer-related inventions this way by defining a narrow concept of technicality is flawed in nuce. I am seriously in doubt about the chances that other European politicians will buy any of the particular German attempts to define the concept of "technicality". To the contrary, I would guess that in most other European countries there will be a strong tendency to keep the definition of this term open for new developments in future. The draft resolution in particular also suggests to drop computer program product claims in the EU Draft Directive. No formal Adoption of Draft Directive on Patentability of Computer-Implemented Inventions yet.The list of "A" items inDocument 15104/04 related to the 2624th meeting of the Concil of the European Union in the Competitiveness Configuration on Thursday November 25 and Friday Novembe 26, 2004 does not comprise the adoption of the Draft Directive on the patentability of computer-implemented inventions.
Strange Discrepancies in Consolidated Text Versions of Draft Directive on Patentability of Computer-Implemented Inventions.On October 06, 2003, the General Secretariat of the EU Council had publishedDocument 11503/03 with a consolidated Version of the Draft Directive on the patentability of computer-implemented inventions incorporating the numerous amendments as endorsed by the European Parliament in its plenary session on September 24, 2003. This version comprises, on page 16, an Article 6a which is said to be included on the basis of Amendment 76:To my surprise I was made aware by a reader of my blog of the fact that a corresponding text file with another consolidated version in Document P5_TA(2003)0402 (this one on the web server of the European Parliament) does not comprise that Article 6a. Nor does another Document EP-PE_TC1-COD(2002)0047 also available via the web server of the European Parliament.
Confusingly, Amendment 76 is also mentioned in Document 13955/03 of the EU Council. It should not have been mentioned there if not accepted by the Parliament. Also the Provisional edition of Parliament Document P5_TA-PROV(2003)09-24 mentions Amendment 76 together with Article 6a. Finally, also the compaigners of the FFII e.V. seem to assume that Amendment 76 creating Article 6a has been endorsed by the European Parliament.
Has the final version of the consolidated text in the version of the European Parliament been corrected at some later time? Regrettably the administration of the European Parliament seems to have removed the original voting list from their web server to which I had provided a link here. I think that it is the wrong policy to remove such details from the web server; hard disk storage is cheap today, why removing and data elements once made available to the general public?
So, the question seems to be: Is Article 6a indeed be part of the Parliament's position or not? [UPDATE] Another reader of this Blog has made me aware of the fact that for some reason the numbering of the Articles in the Parliament's consolidated text version differs. Article 6a is now Article 9, and other parts of the original draft now have different numbers.
Wednesday, November 24, 2004UK-PTO on Patent Applications relating to Methods of doing Business.TheUK-PTO informs the general public:"We are receiving an increasing number of patent applications relating to methods of doing business that are inherently unpatentable. In the usual course of events, at the examination stage there are several exchanges of correspondence between the examiner and the applicant, as the applicant makes successive attempts to rephrase the claims in the hope of coming up with some that are patentable and/or deal with other, less-important issues that have been raised. Only when the end of the rule 34 period1 is imminent is a hearing appointed, normally at short notice. The Hearing Officer then issues a lengthy decision, going carefully through all the arguments advanced. Often, these arguments are very similar to those that have been advanced in many other cases. Read more ...
There is also provided an interesting collection of UK decisions on patentable subject-matter in this field.
Tuesday, November 23, 2004Yet another Joint Statement of Prominents on "Software Patents".Mr. Linus Torvalds, Mr. Michael Widenius and Mr. Rasmus Lerdorf are said to have launched a joint statement on the Draft Directive on the patentability of computer-implemented inventions (albeit, the text of the statement looks as if they might have hired a competent ghost-writer, maybe Mr. Florian Müller or so). Inter alia, the statement says:"[...] The draft directive in question is deceptive because it leads laymen, and even those legal professionals who are not familiar with the intricacies of patent law, to falsely believe that it would exclude software from patentability. However, it is actually a compilation of the entirety of the excuses with which the patent system has, for many years, been circumventing article 52 of the European Patent Convention in order to grant patents on software ideas.I am sure that this kind of "hair-splitting" can be avoided once and for all if those anti-patent campaigners would only be prepared to pull themselves together to declare authoritatively what they wish to understand when talk comes to define the expression "exclude software from patentability". Do they really mean that software is excluded from patentability if and only if no tinkering with any kind of software on any kind of related processor can ever be construed as being a direct or contributory patent infringement? Ok, if this could be assumed to be true, the consequences would be quite clear: The Draft Directive should then simply ban each and every claim the subject-matter of which could be seen as being computer-implementable. In consequence, this would also mean that the patent system is reduced to chemistry, biotechnology, mechanical engineering and some branches of high-power electrical engineering. Each and every invention that deals with signal processing would be rendered unpatentable. Needless to say that such radicalism would not have the slightest chance of being adopted as a general EU policy. Clearly, the present Draft Directive politically endorsed by the EU Council would allow certain claims which might be infringed by (commercially) tinkering with software on a related computer. If this fact is interpreted by the various anti-patent campaigners in a sense that the Directive "introduces" or "allows" patents on software, let them stick to their statements provided that the general public and in particular the politicians are taught what consequences such arguing must have: The destruction of the current patent system as it stands now. I am quite sure that many politicians who express their sympathy with anti-patent campaigners are unaware of the final consequences of such a desire. When patent law specialists are talking about patentable subject-matters they normally do not think of the infringement side of the patent system but of categories of intangibles eligible or not eligible for patent protection, e.g. business methods etc. pp. The reason for this somewhat difficult to understand usage is that a patent performs some kind of a transformation: In real life, a patent by virtue of its legal effects does not act on the (intangible) subject-matter of the granted claims but on different (tangible) items. In any case, an invention belongs to the realm of the "intangibles". If a patent claim reading "electrical motor, characterised in that ..." has been granted, the invention is not identical with any real life electric motor hardware. The invention is the intangible idea behind a novel construction of an electric motor, the intangible idea being identifiable by the list of features as conveyed with the claim granted by the Patent Office. However, if someone manufactures or sells electric motors, there are real-life instances of electric motors which are affected by the legal effects of the patent: They are not allowed to be manufactured or sold, or, in extreme cases, they might be seized or even destructed. And, in view of contributory patent infringement, real-life objects not falling into the category of the generic clause of the patent claim as granted might be affected. For example, if a patent is granted on a novel passenger elevator with an improved control unit equipped with a software running on a microprocessor providing jerk-free ridings, such patent clearly would bar any (unlicensed) business models like that of an "elevator tuning shop" where a clever software coder upgrades elevator control units of various manufacturers by flashing an improved software into the controller implementing the same mode of jerk-free controlling of the elevator of said patent. Yes, and such a clever guy might cry foul, shouting that the evil patent system blocks him selling and installing his software (that, we should assume here, he has written from scratch so that there are no copyright problems to be expected) to owners of elevator installations throughout the EU. But exactly that would be the goal of patenting: Preventing such guys from having a free ride when simply copying the essential features of a patented innovative elevator system. The Draft Directive deals with the question of which category of computer-implemented inventions should be patentable. It is a feature, not a bug, of such a Directive that, although no software ("as such", if you like) is patented, commercially tinkering with software in a technical environment might be construed as a form of patent infringement. [UPDATE0] See also the discussion on Slashdot
[UPDATE1] See in particular this posting on Slashdot.
EU Council: Vote on Draft Directive on Patentability of Computer-Implemented Inventions Delayed.From theIHT:"BRUSSELS European Union governments have delayed voting on a proposal for a Europe-wide law defining which technological inventions can be patented, after both sides in the bitterly fought debate called for more consultation. [...]" Read more ...
Monday, November 22, 2004GPL V3 tackling Patent Issues to come in 2005.eWeek reports:"With a relatively hostile environment that has pitted proprietary software against open source as a backdrop, the Free Software Foundation, the steward of the GNU General Public License, is working on the first revamp to the license in 13 years. Read more ...
Patent Attorneys to challenge Scottish Executive on Court Ban.The question of representation of clients before patent courts by patent professionals other than general lawyers is not only debatedwith regard to the EU but also in Scotland:"THE industry body representing patent attorneys is renewing efforts to persuade the Scottish Executive to sweep away the ban on people other than solicitors and advocates being paid to represent clients in Scottish courts. Read more ...
Finalised Texts of Draft Directive on Patentability of Computer-Implemented Inventions now available.The Council of the EU has now publishedDocument 11979/04 conveying the Common position to be adopted by the Council with a view to the adoption of a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions.
The corresponding translations seem now to be ready, e.g. the German version or the French version.
I guess that the general URL scheme for this Document is http://register.consilium.eu.int/pdf/xx/04/st11/st11979.xx04.pdfwhere "xx" is to be substituted by the respective two-letter ISO 3166 country code of the EU Member State in question.
Saturday, November 20, 2004Any other Patent Attorneys with Blogs out there?As my readers perhaps might have noticed, a couple of days ago I have updated theBlogroll portion of this Blog. However, after having scanned a considerable number of law Blogs or "Blawgs" (discovering in particular a number of very interesting sites from the U.S.) I am a bit surprised that really there seems to be no other Blog maintained by a European Patent Attorney or by some other Patent Attorney located in Europe. Or did I miss something (someone)? If yes, whom did I leave out? If no, why are there no further IP-related Blogs in Europe?
Mr. Philip Mann on certain Patent-related Business Models.Mr. Philip Mann recently posted an interesting article on the IP Litigation Blog:"There's no shortage of people who think the patent system is unfair, broken and an impediment to progress. An Read more ...
Some Remarks on the Gist of the current Anti-Patent Campaigns.When the current anti-patent movement was in its infancy, the role of its spiritus rector clearly had to be attributed toMr. Hartmut Pilch. Having worked in the patents business as a translator and interpreter for many years it seems as if he might have had experienced one day in the late 1990s something like a "Road to Damascus" experience (subjective and bound to his personal horizon only, of course) transforming him from a beneficiary of the patenting business to one of its most vigourous adversaries. Mr. Pilch's motivation to found the FFII e.V. seems, at least partially, to be drawn from aspects of morality. For example, on July 19, 2002 he wrote in a posting to a German mailing list:"[...] Nur die Patenanwälte suchen ihre Rechtfertigung im Status Quo (30000 Rechenregelpatente, 4 Millionen Arbeitslose etc). Wir suchen sie im Gemeinwohl (Innovation, Wettbewerb, Software-Qualität, Freiheit etc) [...]"I would like to offer my English translation thereof as follows: "[...] Only the patent attorneys are seeking their justification within the status quo (30.000 patents on calculation rules, 4 millions of unemployed etc.). We are seeking [our justification] in common welfare (Innovation, competition, quality of software, freedom etc.) [...]"So, for Mr. Pilch the patent attorneys are the bad folks making up the roots of all evil. Not a very differentiated one, but a view clearly based on a certain concept of morality (albeit the same is of a merely notional and lunatic nature). On September 27, 2003 Mr. Pilch further portrayed patent professionals as a segregated network not serving the interests of the economy but selfishly concreting their own power:"[...] Es ist alles der gleiche Kreis, mit den gleichen Karrierewegen. [...] Patentrechtsexperten, die in der Regierung sitzen, gehen zu den gleichen Konferenzen und bewerben sich in ein paar Jahren bei den gleichen Arbeitgebern wie die Patentrechtsexperten in der 'Industrie'. Zwischen all diesen Leuten besteht viel mehr Gemeinsamkeit als etwa ziwschen der Patentabeilung und der F&E-Abteilung einer einzigen Firma wie Siemens oder SAP. [...]"Or, in my own translation: "[...] It is all the same circle, with the same careers [...] Patent law experts employed with the government visit the same conferences and will apply in a few years for a job with the same employers as the patent experts in the 'industry' do. All of these guys have more in common than e.g. people from the patent department and the R&D department of a single company like Siemens or SAP."Hence, the current political debate is generally seen as the result of a somewhat manichaeic dichotomy of the selfish patent professionals on the one side and of the altruistic anti-patent activists on the other side. However, during the past months or so the role of Mr. Pilch within the current anti-patent movement seems to have been weakened. Mr. Florian Müller has entered the stage, setting up the nosoftwarepatents.com campaign website independently of the FFII e.V. Maybe that Mr. Müller is one of the critics from within the anti-patent camp lamenting about the poor condition of the general FFII website. Whatever his personal motives for the creation of that new campaign website might have been, as a matter of fact it is to be recognised that he is now gaining more and more influence. Perhaps that Mr. Müller can be seen as the new shooting star of the anti-patent campaigning scene.
He obviously shares with Mr. Pilch a sense of disgust with regard to patent professionals, denouncing them as a "patent mafia":"[...] The European patent mafia and its political friends deny that there are business model patents in the EU. However, that's a complete lie. [...]"But does Mr. Müller share also Mr. Pilch's moralistic attitude? Mr. Müller wrote:"[...] To me, patents would also be quite nice if I were a Microsoft and had such a huge portfolio that I could cross-license with anyone, including IBM. Since that is not the case, and will not be the case anywhere in the foreseeable future, I need to be protected from patents, not by patents, because on the bottom line the negative implications far outweigh the positive ones. Software patents do a lot more injustice than justice. [...]"So, Mr. Müller would arguably accept patents even on computer-implemented inventions if only he would be in a position to effectively use them to overwhelm his competitors. But he himself feels to be too weak for such an attempt, and consequently he criey foul, demanding from politics to be protected from patents, not by patents, decrying the patent system as unjust because of he feels inapt to make use thereof. To me Mr. Müller's confession seems to be quite interesting. That is no more a language of morality but of salesmanship and business advantages. It makes clear that the present disputes over patent policy are not really related to any fight between "good" and "evil" positions. Those disputes are, instead, simply related to proponents of one particular business model (without any patents, at least without patents on computer-implemented inventions) badmouthing proponents of another particular business model (including the option to patent computer-implemented inventions). In fact stepping up the political pressure as undertaken by the anti-patent campaigners by urging policymakers to restrict the scope of patent law seems to aim to prevent certain anticipated changes of the conditions of software production. It is, in essence, a conservative movement desperately attempting to preserve certain existing business models against emerging others to come. A traditional way of manufacturing software is characterised by some kind of unity of abstract functional problem-solving knowledge on the one hand and software code text on the other hand: The programmer attempts to understand the problem as posed, finds an abstract solution, and then goes ahead to implement the abstract solution by coding a computer program. However, there seem to be strong forces out there desiring to implement different business models characterised by a separation of the abstract functional problem-solving knowledge on the one hand from the production of the software code text on the other hand. The coder's work is outsouced, only the the abstract functional problem-solving work is done at the first place. Such alternative business models, however, can work only on the basis of a sound patent protection of computer-implemented inventions because of the abstract functional problem-solving knowledge as derived in the first stage of this process would otherwise be vulnerable to exploitation by free riders. By its ability to enable a separation of knowledge, the patent system is one of the cornerstones of any "knowledge economy" wherein knowledge is transformed into some kind of commodity which can be exchanged in trade. Such separation of abstract functional problem-solving knowledge on the one hand from implementation-oriented craftsman knowledge on the other hand is quite common in other industries except the software business. For example, no responsible person in the automotive industry would allow a re-design of a car model to go into mass production without having scrutinised the origin and licensing conditions of any external abstract problem-solving knowledge used therein. The essential difference of the software business against other branches of the economy might emerge from the fact that general purpose computers are extremely cheap today so numerous individuals and firms on the lower end of the SME scale are enabled to unfold their business in this branch without having huge capital stocks. In 1994, the European Patent Office had published the results of a representative survey concerning the acceptance of the patent system in Europe. This study clearly pointed out that SMEs significantly underused the patent system. Now, it seems as if in those days SMEs have passively ignored the patent system whereas nowadays some of them are no longer staying aside but, inflamed by Eurolinux, actively attempting to undermine the patent system. Therefore, one of the key insights for curing the present turmoil around the patent system might be that one of the more important causes thereof is a scarcity of acceptance of the present patent system by SMEs in the field of IT. This deficiency might be considered partially home grown as it looks as if in the 80es and 90es of the past century little efforts have been made by patent professionals to remove in the general public the widespread urban myth that software-related inventions cannot be patented at all in view of Article 52 EPC. Perhaps the current difficulties can be seen as something like a late nemesis in return for the lapses that occurred during those years.
Friday, November 19, 2004Mr. Karl-Friedrich Lenz on the Questions related to the Rules of Procedure of the EU Council.Mr. Karl-Friedrich Lenzrecently has replied to my earlier posting concerning the question of the Rules of Procedure of the EU Council, and he provides a link to the respective Official EU publication. He also refers to a FFII Wiki page where a discussion on that matter is given. Mr. Lenz in particular argues:"[...] If there is a blocking minority against the proposal the rules of procedure give enough ways to express it [...]"I think that is right insofar as the final and formal voting on the Draft Directive might be postponed indefinitely if so desired by a sufficient number of votes. However, this would ultimatively mean that the entire Directive effectively fails. It would, however, not mean to revive any political option to re-open the "B"-item political debate again. Article 3 of the Rules of Procedure reads: "[...] 6. The provisional agenda shall be divided into Part A and Part B. Items for which approval by the Council is possible without discussion shall be included in Part A, but this does not exclude the possibility of any member of the Council or of the Commission expressing an opinion at the time of the approval of these items and having statements included in the minutes.Again it should be mentioned that the custom not to re-open the debate on any "A" item seems not to be codified in the Rules. It is a political usage consolidated by long practice. It would, however, surely cause a major political crisis within the EU if any EU country would challenge this practice. Nevertheless, I would not be overly depressed if the entire Directive fails. The present state of the affairs without any Directive is surely much better than anything else which comes close to the Parliament's version or, beware, even to the radical political goals of the anti-patent campaigners. Some Comments on the Debate in Poland concerning Computer-Implemented Inventions.One of my readers from Poland provided me with a comment on myrecent posting concerning the Polish position on the political agreement for the Draft Directive on the patentability of computer-implemented inventions. He wrote that there are reports from participants of the meeting organised by the Ministry of Education and IT saying that some participants might have used different texts of the Draft Directive and that the text that was distributed by the Ministry had a major translation error - "programmed computer" was translated as "computer program".
Such grave translation errors might well have confused the entire debate in Poland concerning the text of the Draft Directive as politically agreed upon by the EU Council in May this year. According to the nosoftwarepatents.com campaign "patent lawyers" are said to have confirmed at that meeting that the present proposal of the EU Council does make all software potentially patentable. However, the question asked by the Polish Government was looking from the side of infringement, not from the side of the material criteria of patentability. To systematically mix up the question of the criteria for determining the material patentability of computer-implementations (which is so far the single point dealt with in the Draft Directive) on the one hand, and the other question of which acts might be considered a direct or contributional infringement of a patent claim (on which the Draft Directive is completely silent), on the other hand, is a constantly used tool out of the toolbox of propagandistic tricks held by the current anti-patent movement including FFII e.V. and nosoftwarepatents.com
The basic policy of the anti-patent campaigners with regard to software protection is the doctrine of "copyright only". Mr. Hartmut Pilch, President of FFII, writes:"[...] Our constituents' basic interest is to keep the software free from patents, regulated by copyright only. I.e. even if there are patents on the much cited 'anti-blocking system', 'washing machine', 'intelligent vacuum cleaner' etc., they must apply only to the makers and users of the devices, not to people who create or provide software (= control logic, similar to user manuals) for these devices. [...] We have a good law already, but some patent courts are not respecting it. [...] We can accept almost any directive, as long as it consists only of clear and simple exclusions from patentability. Art 52(2) EPC consists of such exclusions. It says in clear and simple terms what is not an invention in the sense of patent law. [...] Our first and most basic demand is 'no program claims, no direct or indirect infringement by software distribution'. [...] We can not accept restrictions on the use of equipment that consists of general-purpose computers only. Patent claims of whatever form (process, device, system and method, ...) are unacceptable when the contribution to the prior art consists of pure data processing (i.e. instructions for operation of general purpose data processing equipment). [...]"It seems not to be a fault to assume that their main political goal - within the context of their doctrine of "Copyright only" - is to bring about a state of the affairs in which neither commercial creating of, using of or dealing with computer software can be judged as a form of patent infringement, be it immediate or contributory. Such attempt is, however, necessarily utmost inselective in terms of patent law as it requires not only that a ban would have to be imposed on patenting any computer-implemented invention. Even an invention not actually said to be implemented on a computer which, however, might potentially also be implemented by means of a computer, i.e. a "computer-implementable invention", would have to be exempted from being patented. The consequences of such policy would be extremely grave as each and every signal processing device can be seen as potentially computer-implementable. In fact, the consequences of the various Eurolinux proposals would be to reduce the scope of the patent system to chemistry (including biotechnology), mechanical engineering and certain remaining branches of power-line electrical engineering.
Thursday, November 18, 2004The EU Council and the Polish Position on Patentability of Computer-Implemented Inventions.So,Mr. Florian Müller's latest PR plot for the nosoftwarepatents.com campaign seems to have been a full success: They simply translated a somewhat fuzzy statement discovered on an Official website maintained by the Polish Government into various European languages, promoted a press release titled Poland Does Not Support Current Proposal for EU Software Patent Directive, and the entire corps of Internet-related journalists enthusiastically echoed the message over and over again. According to them, the message seems to be clear: European software patents not pending. But what about the facts?
As I already have pointed out, the informal votes casted during the session of the EU Council in May 2004 confirmed a political solemn promise given by all of the EU Member States to each other to let the majority result pass unanimously even months later when all translations are done and the matter is tabled again as an "A" item for formally voting.
Since the website of the EU Council is in a lamentable poor condition it seems not to be possible to clarify the possible procedural steps by exactly pointing to the Council's written rules of procedure. If you go to the Council's Document Portal Page you might be happy to find a hyperlink labelled "Councils rules of procedure". However, if you dare to click on this link you will [tested today 2004-11-18] get merely a message "Page not found, please click here to go to the homepage". This is not the single broken hyperlink on the Document Portal page of the EU portal, there are lots of them. Obviously the administration of the EU Council seems to think that they are better off by maintaining and promoting only the parts of their website where press releases are delivered while allowing those parts of the Council's website to decay which can be used by the general public for closely monitoring the details of the Council's EU policy.
But when browsing the minutes of various sessions of the EU Council the impression is that the adoption of any "A" item is not a repetition of the casting of votes done weeks or months before when the same matter was on the agenda as a "B" item. Instead, all Council Members, even those having opposed or were standing absent are politically (not legally) bound by their promise given before to adopt any "A" item once politically accepted by a majority when it is eventually tabled together with all necessary translations. If this assumption is right we should expect that even those EU Member States formally accepting to adopt the proposal agreed upon earlier this year in May which then had voted against it or had abstained. Under this assumption it would be no surprise if the Draft Directive politically agreed upon by the EU Council in May would get a broad majority even if Poland should prefer to vote "no" or to abstain. And, there is also another option for Poland to let the "A" item go through but adding an "Unilateral Statement". An example of such "Unilateral Statement" can for example be seen in Document 13899/04 ADD 1 where there is a "Unilateral statement by the United Kingdom" related to the topic concerning "Item 1. Council Regulation establishing a European Agency for the Management of Operational Co-operation at the External Borders of the Member States of the European Union 10827/04 FRONT 117 COMIX 429". As the German Government stressed today, there is no single case known in the entire history of the EU where a political decision cast after having voted on a "B" item was successfully put into question when the same matter was tabled again as an "A" item. If Poland indeed would dare to effectively block a positive vote on an "A" item this surely would cause a major political crisis of the EU Council.
Hence, it seems that some of the euphoric statements greeting the alleged consequences of the statement of the Government of Poland are somewhat premature.
Maybe that the Dutch EU Presidency will prefer to defer that matter further. I would not even want to exclude that indeed not all translations are ready for formal voting. And when the great moment comes where the "A" items are called for voting we might well see that despite any possible reservations of the Polish Government the EU Council might formally adopt the May 2004 compromise.
The PR effect of the campaign is, of course, clear: With little dirty tricks like this one the anti-patent campaigners intend to create a political climate where the pressure on the various national Governments is stepped up not to allow the passing of the Directive in any reasonable form e.g. as politically agreed upon by the EU Council in May this year. In fact, they might hope that the current media hype will create a self-fulfilling hypothesis by politically enforcing another debate in the EU Council. I ho, however, not think that those anti-patent campaigners will prevail so far. New Motion of the ALDE Group in European Parliament on Directive on Computer-Implemented Inventions.On November 10, 2004Mr. Toine Manders has, in the European Parliament, filed a Motion No. B6-0152/2004 for a resolution on behalf of the ALDE Group concerning the Draft Directive on the patentability of computer-implemented inventions."European Parliament resolution on the patentability of computer-implemented inventionsObviously the Liberals in the European Parliament seem not to be too much hostile the the EU Council's version of the Draft Directive.
Wednesday, November 17, 2004More hidden Documents of the General Secretariat of the EU Council.The General Secretariat of the EU Council has prepared an unpublishedDocument 14378/04 concering "Software patents (or Directive on the patentability of computer-implemented inventions COM(2002)0092/final)" "Software patents" "Political agreement of the Council on the proposal for a directive on the patentability of computer-implemented inventions" in view of "PRELIMINARY DRAFT REPLY TO ORAL QUESTIONS - WITH DEBATE - N° O-0055/04 put by Daniel Cohn-Bendit, Evelin Lichtenberger and David Hammerstein Mintz, on behalf of the Verts/ALE Group, and N° O-0060/04 put by Paul Coûteaux and Patrick Louis, on behalf of the IND/".
There is also another unpublished Document 13642/04 to be located within the same context.
[UPDATE] Obviously the above-mentioned Document 14378/04 is related to Document B6-0020/04 of the European Parliament:"4 November 2004 B6-0020/04It looks as if the Council is prepareing a suitable response. Will Poland opt out of EU Council's Common Working Procedures?  According to a Joint Press Release issued by the FFII e.V., the Internet Society of Poland and NoSoftwarePatents.com, Poland is no longer willing to support the text which was agreed upon by the EU Council in May this year. According to the press release, the political agreement of May 18th on a proposed Directive on the patentability of computer-implemented inventions can no longer be formally adopted as the common position of the EU Council:"[...] Warsaw, 17 November 2004. Subsequently to a cabinet meeting, the Polish government officially declared yesterday evening that "Poland cannot support the text that was agreed upon by the EU Council on May 18th, 2004" as a proposal for a "directive on the patentability of computer-implemented inventions". Consequently, the EU Council is unable to formally adopt that legislative proposal as its common position. Without the support of Poland, those countries that supported the proposal in May now fall short of a qualified majority by 16 votes. New voting weights took effect in the EU on the 1st of this month.If these assertions should be verifiable we would have a mayor crisis of confidence in the EU well beyond the particular current debate on the patentability of computer-implemented inventions. See also my earlier posting. The essential test will be the Polish voting to happen on the 2623th Session of the EU Council on November 25, 2004. I am quite curious.
[UPDATE0] See also the report in Heise Newsticker.
[UPDATE1] See also the related discussion on Slashdot.
SYSTEMS Trade Fair, Munich, October 2004: Patentability of Computer-Implemented Inventions.Every autumn theCity of Munich hosts the Systems Trade Fair, an event of mainly regional relevance covering the various branches of the IT industries. This year, on the booth of the German TV broadcaster n-tv two panel discussions concerning the patentability of computer-implemented inventions have been recorded:
Tuesday, November 16, 2004Patently Obvious on "Patent Terrorism".I think Mr. Dennis Crouch is right withhis remark on "patent terrorism". There is nothing to add.
EU strategy to enforce Intellectual Property Rights in Third Countries - Facts and Figures.From theRAPID database:"[...] What is the dimension of the problem? Read more ...
Monday, November 15, 2004EPO to launch European Publication Server in 2005.From theEPO news section:"[...] Visitors to Online Information 2004 will benefit from a sneak preview of the EPO European Publication Server, which will be released in January 2005. The European Publication Server will enable the publication of European patent applications (EP-A documents) and European patent specifications (EP-B documents). The documents will be offered free of charge on a dedicated publication server accessible via the internet. [...]"The Publication Server of the German Patent and Trade Mark Office (DPMA) is already operative under http://publikationen.dpma.de/
The Guardian on EU Directive on Computer-Implemented Inventions.FromThe Guardian:"Europe patent row 'threatens jobs and invention' Read more ...
Thanks to EICTA, BDI and others, the press now is reporting also about the other side of the coin (what they had omitted for a long time before). However, there is no such thing like a homogenous "open sourfce movement". It would be more honest to name a number of particular campaigners, i.e. FFII e.V., Eurolinux and nosoftwarepatents.com.
Sunday, November 14, 2004Intellectual Property and 21st Century Business.Mr. Brad Stone ofNewsweek International recently wrote on MSNBC News an article titled "Next Frontier - Factory of the Future?" about Mr. Nathan Myhrvold's business plans:"[...] Myhrvold and his partner, former Microsoft chief software architect Edward Jung, have created the quintessential company for the 21st century. It doesn't actually make anything: it outsources, offshores and offloads nearly every task performed by regular corporations. It has no factories, machine shops or marketing teams. Only patent attorneys populate the quiet hallways. The five-year-old firm's plan is to create or buy new ideas, accumulate patents - exclusive rights to use the inventions — and rent those ideas to companies that need them to do the gritty work of producing real products. Because today's businesses are constrained by their need to make money, Myhrvold says, 'it is irresponsible for them to think wildly outside the box." He wants to fill that innovation gap — 'We are thinking wilder, crazier thoughts than anyone else.'This seems to be a very paradigmatic view on some of the aspects of modern business in the 21st century within a globalised economy. Invent here and let third parties put the inventions into production anywhere else on the globe. Of course, such concepts surely would not work without a proper patent system in place. Some of the anti-patent campaigners most actively involved in the fight against the patentability of computer-implemented inventions are also hostile to such kind of business plans; however, I can't see why earning a living this way should be evil by principle. I am inclined to go as far as to say an important aspect justifying the patent system today is its potential to enable the separation on creation of knowledge, on the one hand, and the implementation of this knowledge anywhere else un-coupled from the particular circumstances of its creation, on the other hand. And, to the some of the European SME businesses mooting to fuel an upheaval against the patent system: Perhaps it would be a much better idea to pick up such way of fostering industrial creativity by adapting to such ways of business rather than to complain about the patentability of ideas. Otherwise, they perhaps might never reach eye level with their U.S. competitors. [UPDATE] See also the related discussion on Slashdot.
Saturday, November 13, 2004IPJUR OPML File available.AnOPML file is now available covering the Blogroll of this blog.
Friday, November 12, 2004Indian Govt caught between Left & WTO on Patents Bill.The Economic Times (India) writes:TIMES "NEWS NETWORK [FRIDAY, NOVEMBER 12, 2004 12:47:10 AM] NEW DELHI: The Left, which is opposing the Patents Amendment Bill, has once again asked the government not to pass the legislation in a hurry and sought a detailed examination by the Parliamentary panel. If the government agrees to the Left’s demand, it may not be able to keep the WTO deadline of January 1, ’04. [...]" Read more ...
Opinion of the Court of Justice of the European Communities on Community Patent Court.The Council of the European Union has published |