It looks to me as if the U.S. would consider to marginalise the WIPO deliberations e.g. concerning SPLT (which do not go very well because they are over-ambitious and, at the same time, hampered by anti-IP interests of certain countries as well as NGOs) in favour of a "coalition of volunteers" handpicked by the US Government and determined to push forward a globalised IP system.
Modernization is coming to the General Public License, a legal framework that supports a large part of the free and open-source software movements and that has received sharp criticism from Microsoft Chairman Bill Gates.
GPL author Richard Stallman said he's working on amendments that could deal better with software patents; clarify how GPL software may be used in some networked environments and on carefully controlled hardware; and lower some barriers that today prevent the mixing of software covered by the GPL and other licenses.
In the 13 years since the current GPL version 2 was released, the license has moved from the fringes to the center of the computing industry. GPL software is now common at Fortune 500 companies and endorsed by most large computing firms. But that prominence has made some eager for an update.
The patent problem
Patents are one reason Sun chose the license it did. How the GPL deals with that thorny legal area is the issue more than a dozen experts raised most often in discussions for this story.
The patent problems boil down to two issues. First, should the license explicitly require those who distribute GPL software to grant others unhindered use of whatever patented technology is involved in that software? And second, should there be some form of punishment for those who file lawsuits alleging that GPL software infringes their patents?
These issues are under discussion for the next version of the GPL. 'It may possibly help protect our community from pirates armed with patents,' said Stallman, an outspoken critic of the overall idea of software patents.
One interpretation of the current GPL is that patent holders who distribute GPL software 'are in effect granting an implied license' to those patents, said Mark Webbink, the lead intellectual-property attorney for Linux seller Red Hat and a person who first saw revised GPL drafts in 2000. But it might be useful to have an explicitly expressed patent agreement, he said. 'A distributor may not want to leave that ambiguous as to what rights they are giving.'
Frank Bernstein, an attorney with Sughrue Mion, suggests Stallman look for inspiration to Apple Computer's Apple Public Source License and the Common Public License IBM often uses. Both grant a license to use patents covering the software, and when it comes to organizations that sue for patent infringement, both licenses terminate their rights to use and distribute the software.
Bernstein said addressing patents could make the GPL more palatable among corporations--users that have become major contributors to, and customers of, open-source software.
But some would like to see the GPL be more of a political tool tooverturn the idea of software patents. 'We need to find some way to monkey-wrench the awful, broken software-patent oligopoly before it does more serious damage,' said Eric Raymond, president of the Open Source Initiative. 'If GPL (version) 3 can help do that, it would be extremely valuable.'
And Bruce Perens, an open-source advocate, would like to see damages for a patent-infringement suit extended to prohibit use not just of the software in question but of all programs classified as free software. 'I would like to see the next issue of the GPL include a mutual-defense clause regarding patents, such that if you enforce a patent against any free software, your rights to use free software terminate,' Perens said.
A middle ground is possible, Linux seller Novell said in a statement. 'Intellectual-property protection and open source can work hand in hand and are not mutually inconsistent,' the company said. [...]"
UK Intellect: 'Council's Decision Fails UK Hi-tech Innovation'.
Intellect is the trade body for the UK based information technology, telecommunications and electronics industry. Their 1,000 members employ more than 1.1 million people and make a huge contribution to the UK economy accounting for around 10% of GDP.
"Intellect, the trade association for the UK hi-tech industry has today voiced its dismay over the decision of the European Council to defer the adoption of the Common Position on the proposed EU Directive on the Patentability of Computer-implemented Inventions (CII).
Intellect's Director General, John Higgins, said, 'Intellect cannot understand how the EU Council has managed to overlook the negative impact this lengthy, drawn out legislative process is having on the European Union, and within it the UK's, ability to incentivise and protect innovation.'
'The Directive on Patentability of Computer-implemented inventions has the potential to shape the future of the UK’s hi-tech sector. Without it the UK's individual inventors, SMEs and large multinationals, will be unable to protect their inventions, undermining the incentives to undertake R&D, and creating a climate adverse to technology transfer. This is a situation which will put UK businesses at a distinct disadvantage within the global knowledge-driven economy, and one which Intellect and its members are determined to avoid.'
'We call on the EU Council to put an end to this uncertainty, and to commit to a harmonised and reasonable approach to patent protection for computer-implemented inventions in Europe which maintains the current level of protection available to innovators. If Europe is to meet its Lisbon Agenda objectives then EU policy makers must do all they can to boost innovation and competitiveness. Adoption of the Common Position is a critical step in this process, and one which should not be delayed for a moment longer.'"
"Simon Gentry of the Campaign for Creativity and Joff Wild, Editor of Intellectual Asset Management magazine take issue with technology analyst Bill Thompson's recent column in which he argued that a new European directive could put software writers at risk of legal action.
'The directive applies to computer implemented inventions As someone who clearly believes passionately in innovation, Bill Thompson should take the time to read the draft European Directive on Computer Implemented Inventions.
If he does, he will see that, far from being a charter designed to allow American multinationals to run roughshod over the rights of small European companies, its effect will be to even up a playing field that at the moment is heavily skewed in favour of the strong and the rich.
To start with, let us be clear about one thing. This is not a directive that would allow pure software patents.
In fact, it explicitly forbids them. Instead, it offers patent protection to inventions that use software to achieve their effect, in other words, computer implemented inventions.
And, to reassure Bill even further, this is nothing new in Europe. So far, thousands of such inventions have been given patent protection by the European Patent Office.
The alternative to the Directive, of course, is not the abolition of patents for computer implemented inventions, but a continuation of the current situation, which is heavily weighted in favour of those big multinationals that Bill is so worried about. [...]'"
One of the very few media articles not cluttered by myths and misrepresentations caused by the outrageous disinformation campaign masterminded by the FFII e.V. and by nosoftwarepatents.com.
EICTA: "Industry condemns Council failure to support European high-tech Innovation".
EICTA on the recent events in conjunction with the Draft Directive on the patentability of computer-implemented inventions:
"Brussels, 21 December 2004 – EICTA, the voice of Europe’s information and communications technology and consumer electronics industry has expressed extreme disappointment regarding today's decision by the Council to further postpone adoption of a Common Position on the proposed EU Directive on the Patentability of Computer-implemented Inventions (CII).
EICTA Director General Mark MacGann stated: 'EICTA represents the 10,000 small, medium and large companies that work tirelessly to strengthen the competitiveness of the European Union. Council’s failure today constitutes a worrying setback for innovation in Europe, and throws doubt on our collective commitment to the Lisbon Agenda'. [...]"
The UK-PTO has published an interesting set of slides explaining changes to UK Patent Law as of September 22, 2004, Januar 01, 2005, and also later on. According to the UK-PTO, The Patents Act 2004 makes significant changes to the UK's main statute on patents – the Patents Act 1977. The 2004 Act received Royal Assent on 22 July 2004, although none of its provisions came into force on that date. Instead, the provisions are brought into force by commencement orders, of which there have now been two. Commencement Order No. 1 brought some minor provisions into force on 22 September 2004. Commencement Order No. 2 brings some of the major provisions of the 2004 Act into force on 1 January 2005.
In particular, on Januar 01, 2005, amendments will enter into force with regard to
Restrictions on filing abroad
Costs and expenses in infringement proceedings Threats
Entitlement proceedings remedies
Enforcement of damages
Some minor provisions in Schedule 2
For mid/late 2005 amendments are expected to enter into force concerning:
Patent Office opinions
Renewal fee payment periods
Security for costs
Some minor provisions in Schedule 2
It is suggested that in 2007 further amendments will enter into force:
Breaking News: Adoption of Draft Directive on the Patentability of Computer-Implemented Inventions has been postponed.
The German Ministry of Justice just sends a press statement indicating that on request of the Polish delegation at today's EU Council meeting the Dutch Presidency has taken item 16 of the Official list of "A" items off the agenda.
This does not mean that the political agreement as reached in May this year has failed. For now, it only means that behind the scenes the hard fighting on the Council's self-conception will continue.
EU Council Votings on "A" Items: The Political Perspective.
It is a pity that the Administration of the EU Council is not so far compatible with the Internet era as to provide a life video stream of the voting on the so-called "public deliberation items"; cf. my previous posting. So we are not able to watch the proceedings in order to learn what's really happening.
There are a lot of Internet publications in these days complaining that the EU Council has somehow violated the law (at least its own Rules of Procedure) when adopting the Draft Directive on the patentability of computer-implemented inventions despite the fact that the present text has been heavily criticised by Officials of various national Governments.
For example, Prof. Dr. Lenz, Member of the Advisory Board of the FFII e.V., writes:
"[...] Having an approval without a vote is somewhat surprising for those lacking the deeper understanding of the Rules gained by not bothering to actually look at them. Exactly what kind of magic produces an approval without a majority?
The trick is not to call a vote in the first place. If you start actually counting votes, you might end up with having delegations state their real will.
Of course, if that happens, the "approval" in question is purely fictitious.
Logically, there are exactly two possibilities. Either the votes for and against of every delegation are taken and duly recorded, producing a result with some kind of legitimacy.
Or you don't call a vote and just rely on the fiction that there is a majority without bothering to check what the delegations want. [...]"
Obviously, Mr. Lenz assumes that when it comes to the adoption of "A" items on the agenda of the EU Council, each and every representative of the various EU Member States just reproduces the vote as given months earlier when the same matter was on the agenda as a "B" item. I do, however, not share such understanding. In my view, when "A" items are to be formally approved, all representatives of the EU Member States vote with "yes" or give some implied signs expressing approval. So, I would like to think the formal adoption of "A" item matters is always given unanimously irrespective of any political dissent at the time of reaching the political agreement. By the way, this also explains why Ms. Künast was so disgusted of the perspective to head the German Official delegation at today's EU Council meeting: Under the present de-facto working scheme of the Council as sketched above she would not have had a single millimetre of political space for manoevring against the Draft Directive so much disliked by her. Due to strong political reasons, not legal constraints, she simply would have had to cast her "yes" vote and be silent.
The reason of such behaviour is purely due to political motivations, not due to any legal reasons. In my understanding the EU Member States are in any legal sense free to vote as they like if it comes to the adoption of "A" items on the agenda. However, they all seem to voluntarily accept an unwritten rule saying that after a political agreement has been reached on the basis of deliberations held in a "pilot language" like English, no further substantial discussion will ever be re-opened afterwards when the result of the deliberations held in that pilot language are carefully worked out in all Official languages of the EU.
Why do all of the EU Member States act in compliance with such unwritten rule? I think that all involved Officials are terribly aware that the Council's capability to act would inevitably be deteriorated if a conflicting precedence case would be allowed by re-opening the political debate on the Draft Directive on the patentability of computer-implemented inventions. What would come next? There are so many controversial topics to be resolved by the EU Council. For example, a few months later a EU Member State might feel encouraged to re-open the political debate on some agricultural Draft Regulation because of some local farmers have protested against some of its clauses. In the effect, nobody could any longer be confident that the costly and tedious process of preparing and aligning translations after having reached a political agreement would make sense because of at the end of the game the EU Council might be faced with the necessity to start all over again.
And, providing dozens or hundreds of translators in a room next to the hall where the representatives of the EU gather during EU Council meetings for doing the translation work in real-time and parallel to the political deliberations seems to be absolutely unworkable. In particular, extensive language checks to be done by legal and linguistic experts in order to make sure that the meaning of the agreed text is the same in all languages take many hours, if not days. The meetings of the EU Council would have to be turned into some sort of a "convent" lasting for weeks, not just hours or a few days.
And, Mr. Lenz sees a contradiction between this usual procedure of the EU Council and Article 14 of its Rules of Procedure:
"Deliberations and decisions on the basis of documents and drafts drawn up in the languages provided for by the language rules in force
1. Except as otherwise decided unanimously by the Council on grounds of urgency, the Council shall deliberate and take decisions only on the basis of documents and drafts drawn up in the languages specified in the rules in force governing languages.
2. Any member of the Council may oppose discussion if the texts of any proposed amendments are not drawn up in such of the languages referred to in paragraph 1 as he or she may specify."
So, it might well be that in May this year the preparatory documents, i.e. the results of the first reading of the European Parliament as well as the papers from the EU Commission, had been tabled in all Official languages. This does, of course, not mean that each and every twist of the political discussion during the Council's meeting has to be translated in real time into all other Official languages. Moreover, I have not heard of any complaints in accordance with Article 14 paragraph 2. Furthermore, perhaps Mr. Lenz might give a hint where the "rules in force governing languages" he thinks to be applicable are actually codified.
There are some rumours [in German only, sorry] saying that the EU Council in its Agriculture and Fisheries Configuration will not adopt the Draft Directive on the patentability of computer-implemented inventions tomorrow. I have no clue whether or not there is any substance on such reports.
[UPDATE0] (2004-12-21) FFII e.V. reports that there are quarrels behind the scenes because of Ms. Künast, German Minister for Consumer Protection, Food and Agriculture, is member of the German party Bündnis90/Greens. Ms. Künast is said to have a certain more personal problem when officially representing the Federal Republic of Germany today in the EU Council because of as a member of the Greens she is strictly against the present text of the Draft Directive on the patentability of computer-implemented inventions to be formally adopted. In this situation, the rumours say that Ms. Künast intends to waive her protocolary position as head of the German Official delegation at the EU Council in favour of another high-ranked ministerial Official or Ambassador so that she herself can't be blamed to have rubber-stamped the so much disliked Draft Directive. All such rumours are, of course, unconfirmed yet.
[UPDATE1] (2004-12-21) Document 16107/04 comprising the list of "A" items to be approved by the EU Council today in fact does exhibit the Draft Directive on the patentability of computer-implemented inventions under item number 16. The subsection title is "Public deliberation items", whatever that means.
[UPDATE2] So, now (2004-12-21) I have been told of this Press Document suggesting that "Public deliberation item" indeed means that Journalists and general public can follow the debates/deliberations (close circuit TV distribution) at the EU Council's press centre in Brussels. (I think that it must be a somewhat boring procedure but, anyway, why don't they stream that on the Internet?)
"[...] The situation in Europe concerning software patents is moving from democracy to anarchy. [...]"
They are all missing the point. On the meeting tomorrow, the representatives of the EU Member States will not act as politicians (this is what they already had done in May earlier this year) but, so to say, more in a fashion like a notary public: They (or their Officials accompanying them on their trip to Brussels) will have to scrutinise whether or not the English text as tabled is identical with that one on which in May 2004 a political agreement was reached, and whether or not each of the bunch of Official translations of the Draft Directive into the various other Official languages of the EU is accurate. If both conditions are met, the EU Council will do right to formally rubber-stamp the political agreement reached earlier.
I had described the gist of this two-step procedure in an earlier posting. As long as all Official languages of the EU Member States have the same weight with regard to text of secondary EU Law, there seems to be no other choice than first to choose a "pilot language" for politically deliberations on the matter in order to rubber-stamp the bulk of translations later. This is exactly what most probably will happen tomorrow.
Of course, in theory there would be a very good solution for any of such translation-related problems: Choosing English as a "Primary Official Language" for conducting all political deliberations throughout the EU, and in a second step, producing certified but non-binding translations into all other Official Languages of the EU in a later but purely administrative step, without any further involvement of the EU Council on the political level. However, it seems also to be quite clear that such solution is infeasible at least at the moment. In particular the EU Member States of the "Club Mediterrané" (i.e. the EU Member States in the Mediterranean) surely would strongly object to any such attempt to reduce the Babylonian language mix within the EU.
"[...] According to several independent governmental sources, the software patent agreement of 18th of May will be adopted as an uncontroversial item (A-item) by the Agriculture (or Environment or Fishery) Council on Monday or Tuesday next week. Neither the Mertens group yesterday nor the diplomats at Coreper today raised any objections. Several countries made unilateral statements in which they distance themselves from the proposal and point to the European Parliament as the bearer of their hopes. [...]"
"[...] European Union (E.U.) governments have rubber-stamped rules governing the patentability of inventions implemented by computers, known as the software patents directive, standing by an agreement they reached in May, according to an E.U. spokesman.
A meeting of ambassadors to the E.U. on Wednesday evening agreed to formally endorse a deal reached by member state governments in May of this year. The decision will come as a blow to opponents of the new legislation among the open source software community who argue that the rules would allow the patenting of software. For approval, the legislation still must be referred back to the European Parliament (EP), which includes many supporters of open source software. [...]"
The ambassadors gathered in COREPER can't rubber-stamp anything. However, they can pave the way for rubber-stamping by deciding to put that matter as an "A" item on the agenda of the next available EU Council meeting. This is what they actually have done.
See also Document 14574/04 of the General Secretariat addressing COREPER, asking the latter to recommend the EU Council to adopt, as an "A" item on the agenda for a forthcoming meeting, the common position as in 11979/04 and the statement of reasons as in 11979/04 ADD 1, and enter in its Minutes the statements contained in the Addendum to this Note. And, moreover, there is also a further Document 14574/04 ADD 1 COR 1(en) exhibiting an interesting statement of the Dutch EU Council Presidency:
"3. Statement by the Netherlands
(Revised translation in English provided by the Netherlands delegation)
The Kingdom of the Netherlands states that it considers the harmonisation directive on the patentability of computer-implemented inventions to be of high importance. On 18 May, the Netherlands, part of a qualified majority of member states, politically agreed with the text of a common position in first reading. The Dutch Parliament stated as its position that the political agreement offers insufficient guarantees to prevent proliferation regarding software patenting. This concern will be taken into account by the Netherlands in the further consideration of the directive in second reading.
The directive aims to harmonise the rules within the European Union on the patenting of computer-implemented inventions and to offer clarity on which inventions are patentable and which are not. In this light, the Netherlands wishes to confirm explicitly that the directive text now under consideration aims to exclude non-technical and non-inventive inventions and business methods as well as pure software, from patentability. This is because patenting of this nature will not make a positive contribution to the ability to innovate. Recently, a lot of public and political debate has arisen on the proposed directive and the patenting of computer-implemented inventions in general. On further consideration of this directive in second reading, the Netherlands will confirm as it premises that the rules on and the implementation practice of the patentability for computer-implemented inventions are sufficiently clear and that the aforementioned undesirable forms of patenting are prevented. Therefore, the Netherlands will in second reading only be able to agree with a directive text that does not disturb the balance between patentability and non-patentability."
Peter informed the group that the Directorate was seeing a large surge in requests for ex parte patentability hearings on "hopeless" business method applications. He recognised that in the past applicants had tried to hang on to cases in the hopes that the law and/or the political climate might shift towards widening the scope of what was patentable. However, it should by now be very clear to everyone that this was not going to happen. The political climate in Europe was firmly against any widening, and whilst the latest EPO case law continued to refine the tests, it was not making any significant shift in the boundary between what is and is not patentable.
The large number of hearings was creating a lot of extra work for the Directorate with no real benefit to applicants, their representatives or anyone. Accordingly, we are introducing two changes to the way we handle hopeless patentability cases, with immediate effect:
1. Appointment of a hearing at an earlier stage, with consideration of other matters deferred. At present, each case goes through several rounds of correspondence, in which other objections are resolved and, typically, the applicant offers a growing number of reformulated claims allegedly containing some technical effect. The case then finally gets to a hearing right at the end of the rule 34 period, when the hearing officer nearly always concludes that the invention is fundamentally unpatentable and no amount of claim re-formulation will get round that fact. In future, a hearing will be appointed in such cases as soon as the first response has been received from the applicant.
2. Shorter decisions, which would still make the reasoning clear but would do so by relying on the reasoning in previous decisions rather than going through the reasons all over again. This approach was justified by the House of Lords judgement on 1 July in South Bucks District Council and another v Porter (No 2) - see Times Law Report for 2 July. This had made clear that whilst a tribunal’s reasons had to be intelligible and adequate, they could be briefly stated.
Peter stressed that these changes only applied to hopeless cases, and not to those whose disclosure did seem to contain a genuine technical effect which had the potential to provide the basis for a valid claim.
Peter encouraged the group to look at the latest EPO decision – Hitachi, T0258/03. At first glance, its approach seemed very different from that established by UK case law, since it reduced the Article 52 test to a triviality. However, it strengthened the Article 56 test in a way that had much the same effect as the UK approach, and arguably was even a little tougher. One interesting line of reasoning was that circumventing a technical problem by modifying the business scheme was not a technical contribution.
Peter confirmed that whilst the Office would welcome an appeal on a suitable case in order to give the courts the opportunity to consider the latest EPO case law, applicants were showing little inclination to appeal. He suspected this was because they felt they had very little chance of success.
Peter asked the interests for help in getting the message across. Following discussion,CIPA he agreed to issue a Practice Notice, which could then be publicised in the CIPA Journal. Gwilym said this would help agents who were under pressure from US clients to pursue these cases.
Peter also said that the Office is preparing literature to help with the debates on the "software" directive, and one of the items would be a short leaflet which would include a list of a dozen or so cases refused by the Office this year, to give a clearer idea of what was not patentable. Richard suggested that this list be included in the Practice Notice (with hyperlinks to the decisions), and Peter agreed. Peter also confirmed that the material produced would be available to the profession and would be put on the Patent Office website.
Actions: Interests to take back to organisations information regarding faster PO decisions. Peter to prepare a Practice Notice [...]"
Indeed, the "political climate" in Europe is more and more firmly against any widening of the criteria for patentable subject-matter. To the contrary, the various anti-patent lobbyists are exercising a huge political pressure on Patent Offices and Courts to define the patentability criteria as narrow as possible. Not only in the UK but also in Germany and elsewhere.
A lot of money has been wasted around 1999/2000 during the last phase of the dot-com boom era for preparing and filing patent applications directed to border areas of computer-implemented inventions which looked promising at filing date but now, under today's "political climate" conditions, are considered to be "hopeless" cases. Those investors fleeced of the patent rights for their inventions might wish to thank the various anti-patent campaigners for their losses.
BTW, the last item on the agenda of the meeting was:
"[...] 9.4 Website information
Luc asked about the possibilities of providing an e mail notification to customers regarding updating of Patent information notices on the website. [...]"
"E-mail notification"? Sounds rather outmoded. Could please someone explain to the Internet Development Team the advantages of RSS / Atom Feeds?
"The Trilateral Offices considered the letter from the Trilateral Alliance of Intellectual Property Information and Services Companies addressed to the heads of the Trilateral Offices , and confirmed the following for the acceleration of patent information dissemination:
- The Trilateral Offices acknowledge that they each have a process in place that encourages continuing dialog and communications with private sector organizations involved with the dissemination of patent information.
- The Trilateral Offices share the opinion that the key dissemination tool for patent information in the future will be the Internet.
- Each office will continue to use the Internet in such ways as are determined to be appropriate in their individual policies regarding legal, technological, and data requirements.
- The Trilateral Offices appreciate the contribution of the private sector in their information dissemination efforts and look forward to having continued discussions on this topic.
At the 22nd Annual Trilateral Conference the Trilateral Offices concluded the following as stated in the "22nd Memorandum of Understanding on Trilateral Cooperation in the Field of Industrial Property".
"The Trilateral Offices reinforce its commitment to use the Internet as the key dissemination tool for patent information in the future. Each office will use the internet in ways that are appropriate in light of individual legal, technological, and data requirements. One of the projects in this respect is the Japanese interface for esp@cenet which is being developed by the EPO in cooperation with the JPO and will be launched in 2005. Further projects can be a Japanese interface to epoline and the implementation of linguistic tools in these applications.
The Trilateral Offices appreciate the contribution of the private sector in their information dissemination efforts and will each encourage a continuing dialog with these organizations."
Well, ... I must confess that I do not understand the gist of this text. Even Google is silent on that "22nd Memorandum of Understanding on Trilateral Cooperation in the Field of Industrial Property". Where is that ominous "letter from the Trilateral Alliance of Intellectual Property information and Services Companies addressed to the heads of the Trilateral Offices" available on the Internet? Is all that merely gobbledygook? Could anybody please give me a hint on how to read such statements?
Perhaps the European Patent Office should at first start with improving the dissemination of patent-related information on the Internet by abandoning the boring page-by-page download mode currently implemented in espacenet. The publication of patent documents is already paid by the applicant's fees, so why should the Patent Offices be so much considerate of commercial document suppliers' interests?
[UPDATE] One of my readers has indicated that indeed espacenet will move towards the download of full documents next year - I obviously had missed this announcement. Thanks.
"[...] Minister for Science & Innovation, Lord Sainsbury, today outlined the Government's firm commitment to a patent system which fosters and supports innovation in all areas of technology, including inventions which rely on software.
The proposed European Directive on the patentability of computer-implemented inventions will not adversely impact on the software market, particularly in relation to Open Source, but will instead help support a strong and vibrant technology based industry.
Critics of the proposed Directive, who have been engaged in a letter writing campaign to government and MPs over the last five years, today were invited to discuss their concerns at a meeting with the Minister and Patent Office officials.
Speaking at the meeting Lord Sainsbury said:
"It is vital for Europe to have a climate which supports the software industry, including the valuable role Open Source has to play."
"Patents provide the confidence to invest in R&D for technological industries and the current draft Directive will ensure that Europe continues to strikes the right balance and provides clarity as to what can and cannot be patented with regard to computer-implemented inventions. It does not change anything, but maintains the status quo."
"Changes in patent practice in the US in the last five years have caused concern in some areas of the computer industry and the Directive will ensure that Europe continues on its own path which is a balanced approach that both creates a climate for innovation and supports open source software."
Peter Hayward of the Patent Office also addressed the meeting. He said:
"The Directive, in its current form, is vital in protecting the innovations in the European software market."
"The intention is to maintain high criteria for those seeking patent protection, and to prevent any drift in patent standards towards the current US position."
"This was a highly productive meeting which brought out a number of key issues in the discussion which we will take forward."
The Patent Office has been in consultation with the software industry since 1994. Responses to both formal and informal consultation have indicated that the law does not need to be changed, but requires clarification.
The Patent Office estimates that up to 20% of patent applications received are for inventions which use software. Mere computer program listings, like lines of code, are protected by copyright but excluded from patent protection in the UK and Europe. However inventions in which software makes a technical contribution, like a mobile telephone or car engine management systems, have always been and will continue to be patentable. Patents like these underpin the research and development infrastructures of many hi-tech businesses in Europe.
The Directive is expected to return to the European Parliament for a second reading early next year."
So, now I am a little bit astonished that neither FFII nor nosoftwarepatents.org have up to now published any specific complaints about that event. No doubt, such screaming and shouting will happen later this week. Most probably it was a waste of time for the DTI to try to convince those hard-nosed anti-patent campaigners anyway.
"[...] At the end of a raucous meeting in London on Tuesday, the minister for science and innovation, Lord Sainsbury, and the UK Patent Office agreed to consult further on the pivotal issue of what should constitute 'technical contribution' when used to decide whether a particular software patent should be granted. [...]"
COREPER discussing Patentability of Computer-Implemented Inventions.
Obviously the Dutch EU Presidency is considering how to push ahead with the formal vote of the EU Council on the Draft Directive on the patentability of computer-implemented inventions. On the agenda of the 2077th meeting of the Permanent Representatives Committee (COREPER Part 1) summoned to happen today and tomorrow there is a topic indicating that the formal adoption of the Draft Directive will be discussed. All the work of the EU Council is prepared or co-ordinated by COREPER, made up of the permanent representatives of the member states working in Brussels and of their assistants. The work of this Committee is itself prepared by some 250 committees and working groups consisting of delegates from the member states. Sources from the FFII e.V. say that this might be an indication that the Draft Directive will be adopted by the EU Council on its last session this year. However, on December 22, 2004 the EU Council will meet in the Agriculture and Fisheries configuration. Although this looks rather strange, it is not objectionable in a legal sense to adopt a patent-related Draft Directive in session of the EU Council in its Agriculture and Fiheries configuration because of there is only one EU Council usually staffed diffrently in accordance with specific topics: The Council meets in nine different configurations depending on the subjects being examined.
German Bundestag again to debate Patentability of Computer-Implemented Inventions.
In my earlier posting I had reported that the FFII e.V. had obtained a draft 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. Now, the draft has been finalised as Official Document No. 15/4403 [in German only, sorry] and officially launched for parliamentary proceedings.
FFII e.V.reports that the Spanish Government continues to oppose the EU Council's version of the Draft Directive on patentability of computer-implemented inventions. According to their Wiki, during a plenary session of the Spanish Senate on 1st of December 2004, the Spanish Minister of Industry, Mr. Montilla, has answered a question posed by senator Jordi Guillot on the position of Spanish government on the Draft Directive on computer-implemented inventions:
"[...] the proposal of Directive should have the largest possible social consensus, given its big impact on the IT industry and all other users of IT. Some examples are some regional governments of Spain like Andalucia, Extremadura and Valencia that include open source platforms in their initiatives to promote information society. Moreover, the text debated in the Council does not reflect the general sense derived from the debates in the European Parliament. Also, only a few of the numerous amendments approved by the Parliament, and only those with little modifying effect, have been accepted by the Council. All those were the reasons that led Spanish to vote against the proposal. Delegations of Austria, Belgium and Italy abstained and, since the blocking minority was not reached, the formal common position is due to be adopted by a future Council of Ministers.
However, it is still possible that some delegations change the position that they took in May. This modification should be formally announced in a COREPER. If this would happen, we could reach a blocking minority and therefore the common position would not be reached and the text would go back to the working group. Otherwise, if the text is finally agreed upon, it will be sent to Parliament for a second reading.
In any case, either if the text goes back to the working group or is sent to the Parliament for a second reading, Spain will maintain its position, consisting that the Directive should not have as a result the widening of the matters subject to patentability.
The will of the Government is that those inventions that are not patentable before the approval of the Directive should continue being excluded from protection of the patent legislation after the Directive takes effect.
In summary, Spain will continue defending that patents protect inventions that effectively add a significant contribution to the state of the art, allowing the patent system to fulfil its true function of promoting innovation and technological development apart from being a valuable instrument for sharing technical information."
Uuh ... "The will of the Government is that those inventions that are not patentable before the approval of the Directive should continue being excluded from protection of the patent legislation after the Directive takes effect", said the Minister. Where is the problem? Could please anybody explain to the Spanish Government the gist of the Draft Directive in the Council's version, thereby pointing out why it merely represents a "snapshot" of the recent case law of the Boards of Appeal of the European Patent Office?
"On 1 December 2003, the President of the European Patent Office and the Minister of Foreign Trade and Economic Relations of Bosnia and Herzegovina signed an agreement on co-operation in the field of patents (Co-operation and Extension Agreement).
This agreement entered into force on 1 December 2004. From this date it will be possible to extend the protection conferred by European patent applications and patents to Bosnia and Herzegovina. Extended European patent applications and patents will enjoy essentially the same protection in Bosnia and Herzegovina as the patents granted by the EPO for the currently 30 member states of the European Patent Organisation.
The legal provisions governing the extension of European patents in Bosnia and Herzegovina were published in Sluzebni Glasnik BiH (Official Journal of Bosnia and Herzegovina) No. 2/2004, 119 ff on 3 June 2004 and came into force on that date.
Extension occurs at the applicant's request. 4.1 Extension to Bosnia and Herzegovina is deemed requested for any European and international patent application filed on or after 1 December 2004. Extension to Bosnia and Herzegovina is not available for applications filed prior to that date, or for any European patents resulting from such applications. The extension fee is EUR 102. It must be paid to the EPO within the time limits prescribed in the EPC for paying designation fees (Article 79(2) EPC, Rule 107(1)(d) EPC). After expiry of the relevant basic time limit, the extension fee can still be validly paid within the period of grace for the payment of designation fees, provided that within that period a surcharge of 50% is also paid. 4.2 If the extension fee is not paid in due time, the request for extension is deemed withdrawn. Further information concerning the extension of European patent applications and patents to Bosnia and Herzegovina will be published in later issues of the Official Journal.˛
Furthermore, Lithuania today acceded to the European Patent Convention as 30th member state of the European Patent Organisation. Welcome in the EPC Club.