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> The old song of the protectionists: If the industry at home is
> too weak to stand one's ground, then erect barriers against the
> foreign competitors. This concept is as wrong and misguided as
> ever.

This claim shows how false your article is. Really protectionists try to get an unfair advantage over their foreign competitors. One of this advantages could be higher tolls for the competitors or subventions for the home industry.

Nothing of this applies to an EU without enforceable software patents. If the FFII (and many other software developers!) come trough, the playground would still be at one level. The competitors would just have to accept, that some of the EU-wide rules are not equal to their rules at home, but this happens all the time.

If you deny that, then according to your view it would also be an act of protectionism, if we do not allow foreign companies as well as our own companies to sell products which do not match our environmental standards. (Just one example - we could also talk about technical standards, TÜV, TCO 99 and so on).
 
 

 

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Mr. Lenz recently wrote:

"Axel H. Horns discusses the fact that introducing software patents in Europe would harm the European software industry by requiring them to pay large royalties to American patent holders.

It is remarkable that he doesn’t try to conceal or dispute that fact. He completely agrees with FFII that most existing software patents are not held by European companies. [...]"

This is not true. In fact, I don't even know whether or not "most existing software patents are not held by European companies". But, in fact, I would not oppose against the patentability of computer-implemented inventions on the basis of such a reason even if a serious statistics would result in such a finding. If European companies should ever manage to close the technological gap to the US then I am quite sure that the patent statistics would reflect such a change by reducing or even inverting any dominance of the US therein.

Mr. Lenz further writes:

"[...] Strictly from an economic point of view, Europe would be shooting its own foot by legalizing software patents. Don’t confuse allowing software patents with having them."

In another context, I recently wrote:

Please do not again play with arguing on the basis of such statements like "Article 52(2) EPC bars patenting computer-implementing inventions". The only competent institutions to check this, the national Courts and the Boards of Appeal of the EPO, they all have said that a proper interpretation of the clause does not in general prevent the EPO from granting patents on computer-implemented inventions despite the indisputable fact that such patents might under certain circumstances be enforced against persons commercially dealing with software. The only argumentative way to get around this obstacle and at the same time retain your preferred interpretation of the law for you would be to argue that this is 'perversion of justice' (what Mr. Pilch did two or three years ago) and call for a bloody revolution to smash the Courts and the Boards of Appeal of the EPO (what up to now nobody did). I can only urge you not even to think of that.

The other way for you would be to acknowledge that the patent law as it stands does well allow patents on computer-implemented inventions and you might perhaps call for a change of law. However, in this case it is perfectly clear that you and your co-campaigners do want to have a change of law, not the patent aware companies, not the patent professionals, not the EU Council, and not the EU Commission. When drafting the original version of the Directive on the patentability of computer-implemented inventions it was the proper intention of the EU Commission to codify a 'snapshot' of the current state of Case Law of the Boards of Appeal of the European Patent Office. No more, no less.
 
 

 

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As I already said (and Mr. Lenz did so too) your claim that opponents of software patents behave like protectionists is wrong.

Why? Because it would only be protectionism, if European companies would get better rules for the European market, than their foreign competitors.

It is very interesting how you neatly sidestepped this question. Nevertheless I can understand this behaviour. What else should you do, if the fundamental assertion of your whole article was without substance.


By the way, I already answered to your "other context". You can find the whole answer as comment on one of your articles at the URL
http://www.ipjur.com/2005/02/playing-with-concept-of-required.php3
 
 

 

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Protectionism might be defined as follows:

"Any of several political-economic doctrines that have in common advocating that government impose political barriers to international trade (usually taxes on imports or quantitative restrictions limiting the volume of legally allowable imports of each particular good) in order to "protect" a domestic firm (or firms) manufacturing these same goods from foreign competition and thereby make it (them) more profitable than would otherwise be the case under free competition. Although difficult to justify on the basis of economic theory, protectionist measures often enjoy considerable political support because it is usually much easier for a tiny group of firms (and their associated labour unions) that stand to benefit greatly from a protectionist measure to organise for political influence than it is for the much larger group of consumers who each stand to lose smaller individual amounts by the proposed measure - even though the total losses normally greatly exceed the total gains." 

I now say that if it could be established that European companies are - on the average - less innovative than companies in the U.S. or in Asia, then they might, at the end of the day, benefit from a less tight patent system because of they can then enjoy more opportunities to have, on their respective domestic markets, a 'free ride' concerning inventions made by third parties outside the EU. So, a political or economic doctrine recognising a specific weakness of the European companies in terms of capability to innovate and, in response thereto, deliberately weakening the legal potential for protection of innovations as provided by the patent system (e.g. by excluding computer-implemented inventions from patentability) in order to stimulate within the EU 'free riding' of innovative technologies from outside might well be called an economic policy of promoting favoured domestic industries, or, with another word, 'protectionism'. Some European companies do get better rules for the European market by weakening the patent system than their foreign competitors because of they can benefit from third party's technology. In particular, if patents on computer-implemented inventions would be banned in Europe, locally trading European SMEs in the field of IT which are not generally active on the globalised world markets would - with regard to their EU-domestic markets - be able to have a 'free ride' concerning technologies which are patented elsewhere. A U.S. multinational recognising the EU as a 'niche market' could not benefit on the same scale from a weakness of the European patent system because of the respective products brought to market on a true globalised world market must all be scrutinised vin view of the various third party patents in other countries of the world outside of the EU.

If the European companies including such SMEs would - on the average - be outstanding on a global level with regard to the inventiveness of their technologies they would be keen to have maximum patent protection. Weak SMEs can benefit from a weak patent in their domesic economic area, strong SMEs can benefit from a strong patent system on a truly global scale.

From the Preamble of the TRIPS:

"Desiring to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade; [...]" 

TRIPS ensures some uniform minimum standard of protection of Intellectual Property around the globe in order to safeguard free trade, i.e. to combat protectionism. The anti-patent campaigners want to favour certain groups of companies over others, e.g. European SMEs over U.S. multinationals. To this end they desire to erect trade barriers by destructing the gist of TRIPS as a basis of modern globalised capitalistic world trade.