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"various anti-patent activists argue that Mr. Lehne is merely a pro-patent lobbyist"

Well, you can't say he exactly opposed the virtual unlimited patenting road taken by the Commission and the Council.

I think the problem with most lawyers on this subject is that they somehow believe patents automagically stimulate innovation because they protect something. The fact of the matter is that patenting is a razor sharp two headed sword.

The Dutch Professor Theeuwes wrote a nice report about patents and its influence on the market as part of a report ( http://www.dnb.nl/kvs/pdf/KVS-2004%20compleet.pdf ).

What he describes is that patents can stimulate knowledge creation, but hinder knowledge diffusion. Knowledge re-use. And that is in my view a very important notion, because the successful business models the ICT sector is built on make use of the feature of software that it can be easily re-used, with Open Source as an extreme example.

For a long time, I hadn't really decided wether or not I have fundamental objections against software patents or that it is just that the problems we see with the patenting system are amplified in the case of software.

Just this week, I realised the software I'm working on (www.opendtect.org) is just as innovative and complex as, say, medical systems. With medical systems you use MRI scanners to look into a body, we use sound waves to look into the earth. But once the data is in the computer, it's more or less the same thing.

That made me realise writing software is just writing software and it doesn't really matter what purpose you write it for. Having concluded that, it is hard to believe that some software would need more protection as other software and that business models working for the ICT sector would be unusable in other sectors.

I have written embedded software myself for over 2.5 years with OMRON. We even filed some patents at some point, although these wire filed in Japan. Basically these were useless patents. First of all, they did not stimulate one bit of innovation, because the patents were applied for stuff we had developed anyway. Secondly, they were applied for amazingly simple things, one of them not unlike the ISNOT operator that made Microsoft famous lately.

These patents were filed for one reason: defense. And that is what software patents gets us: an arms race noone benefits from.

The reason given that we need all this, is that without patents software in DvD players, vacuum cleaners and God knows what would be unprotected, which is simply not true. Any software is protected by copyright, which is fast, safe, narrow and cheap. And yes, I understand perfectly that copyright is something else as a patent, but the point is that copyright *does* protect software from copycatting.

Of course, you guys will tell that anyone can just steal the ideas and then make new software, but how come this does not happen?

If that were the case, wouldn't the sofware sector cry foul and wouldn't we see much more cases in court?

The point is: copycatting rarely takes place, because first of all noone wants to be caught having stolen someone elses work and secondly, it's not economically viable to reverse-engineer someone elses work and then make an imitation.

If you take a look at a NASA page ( http://ceh.nasa.gov/webhelpfiles/Software_Estimation.htm
) you will see that writing completely new software with new code only costs 20% more as writing something with a design similar to what you have written before.

In other words: you can save at most 20% by reverse engineering and then make an imitation, not counting the cost of the reverse engineering itself. That is not economically interesting, unless you have a very compelling reason to do so, like when you are forced to be interoperable.

So, if copycatting does not take place in the ICT sector, why would it take place in the CE sector?

It comes down to this: copycatting is not a problem if software is treated and marketed and licensed as software, in the form of libraries, etc.

Patents do not help there. They do not stimulate software re-use, because they force competitors to re-implement and pay extra for that privilege, too. I can't see how that could possibly stimulate innovation.

To make a long story short: the patent system does not fit to the software sector, because patents make software re-use harder which undermines the economic models the ICT sector is built on.

Patent on software do more harm then good. If you remember that about 75% of all European software patents are in the hand of non European companies, it becomes clear that most licensing money will flow out of Europe. We would be sponsoring our own competitors and put our own software sector at a disadvantage.

I don't think it would be wise to do that to ourselves.
 
 

 

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Dear Mr. Lammertink, the debate about the patentability of CII is not about software in the first place.

In Patent Law, an "invention" is an object of legal protection of its own kind. Not the tangible embodiment of the idea of the invention is the object of legal protection but the idea in itself underlying this embodiment. This idea is from the realm of the intangibles. The language of the patent claims used in the granted patent is merely an awkward tool to note down those features which are suitable to identify embodiments of the invention in the real world.

Speaking in strict terms, even a »vehicle tyre« is not patentable despite the fact that you can see numerous granted patents where the generic clause of the patent claims is just »vehicle tyre, characterised in that ...«. The invention is always intangible; nevertheless the embodiments thereof come along in the shape of tangible objects (like e.g. a »vehicle tyre«) in the real world as indicated by the generic clause.

Tinkering with applied physics and applied forces of nature in the context of seismic analyses can, of course, be such kind of an "idea" forming subject-matter of a valid patent.

Despite the fact that software is not subject-matter of a patent (even not in the version of the Draft Directive as adopted by the EU Council!) it may happen that constructing a dedicated machine by running a certain piece of software on a related processor constitutes an act of patent infringement.

Despite the fact that software is not subject-matter of a granted patent, such kind of patents clearly indirectly may have an effect on the software market.

In this case, and under the assumption that no patent license is available, it would not be sufficient just to re-code the software in a different linguistic construct but it would be necessary to solve the problem as posed in a different way so that the patent is not infringed any longer. In this way the patent system can also foster the development of alternative routes to solve a certain problem as posed.

Because patents are regularly published they foster the dissemination of knowledge of solutions related to problems. However, the actual use of this knowledge is at the disposal of the patent owner.

A single patent hardly affects a larger piece of software in its entirety. For example, some patented technical teaching related to the detection of oil reserves (a certain technical "trick" to extract indicators pointing to oil reserves from raw data or so) from seismic measurements might force you to re-code the main algorithm of a certain particular measurement analysis software module just implementing the patenting invention but most probably not OpendTect in its entirety.
 
 

 

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There is some argiung over this posting because of the title line thereof appears to attribute the campaign against Mr. Lehne to FFII.

OK, I never have said that there exists a formal decision of the board of the FFII to this effect. And, I would be happy if, on behalf of the FFII e.V, Mr. Pilch would dissociate himself from such malpractice.

However, the Heise Newsticker article reads as if FFII at large would be in support of that campaign:

"[...] Taylor Wessing ist laut dem Förderverein für eine Freie Informationelle Infrastruktur (FFII) "dick im Geschäft mit der Patentlobby". Der seine Unterstützer vor allem aus dem Mittelstand rekrutierende Verband wittert daher einen Interessenskonflikt bei Lehne. "Düsseldorf ist Deutschlands und damit Europas Hochburg für Patentverletzungsprozesse", heißt es beim FFII. "Die dortigen Gerichte sind besonders bei Patentinhabern wegen ihrer relativ großen Effizienz bei der Durchsetzung von Patentrechten beliebt. Zu den Firmen, die hierdurch viel Geld verdienen gehört auch die auf Patentstreit spezialisierte Kanzlei Taylor & Wessing." Die Softwarepatentgegner weisen ferner darauf hin, dass Lehnes Kanzlei dem vormals als Deutschem Multimediaverband (dmmv) firmierenden Bundesverband digitale Wirtschaft (BVDW) einen Rabatt von zehn Prozent für ihre Dienstleistungen anbiete; dies wird auch offiziell auf den Seiten des BVDW ausgewiesen. Der BVDW wiederum agiert laut FFII "in Brüssel als eines der Aushängeschilder für die Lobbyarbeit von Microsoft". [...]"
 
 

 

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Alex Horns wrote:
Dear Mr. Lammertink, the debate about the patentability of CII is not about software in the first place.
Mr. Horns, please notice that even the Business Software Alliance recognizes that CII is software patents.

Check http://wiki.ffii.org/Bsa050609En
 
 

 

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This post has been removed by a blog administrator.
 
 

 

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(I have removed a doublette of Rui Seabra's comment.)

If the anti-patent crowd were not so much sectarian I perhaps whould not have problems with the term "software patent".

However, since the early beginnings of the debate, anti-patent campaigners have launched the term "software patents" deliberately in order to suggestively propagate the idea that granting patents on CII violates Article 52 EPC what is, indeed, absolutely not the case.

Patents on CIIs are not equal to patents on "software as such", whatever that might mean.

I do not deny that everybody (commercially) tinkering with software might get sued if the functionality of that software infringes a valid patent.
 
 

 

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Just for clarifacation Mr. Horns:

* there was no organised FFII campaign against Lehne, it was similarly like the Limux thing in Summer 2005

* Many persons in FFII are angry about the position that Lehne took

* Many swpat critics, SME etc. were angry that Lehne did not want to talk to them.

* there were talks about Lehne in webfora. FFII did collect all findings on the German Lehne page, with low interest.


* Lehne as a RA works for Taylor and Wessing as a attorney while being an MEP. Taylor And Wessing is also in patent law. Somebody found that Taylor and Wessing has ties to pro-patent lobbyist BVDW.

Then came a Heise report which mixed it with other Lehne issues and attributed the whole thing to FFII.


The second impression and findings

* Taylor and Wessing monitors closely EU patent policy with a team in the Brussels office and took an observatory role in patent law.

* Lehne was employed for "regulatory Affairs" in September 15 together with Haak in Brussels (!) and Düsseldorf. Regulatory Affairs was newly created. It is for EU legal policy monitoring, not a usual attorney job, more a polica advisor. So in plain speak: Lehne works as a breakfast director for Taylor&Wessing.

* It would be a conspiracy theory to assume that he was hired before the 24 Sept 1st reading vote because of the swpat vote.

* "Regulatory Affairs" had no special focus on patent law.


It is not of no natural interest of FFII to be ad hominem against Lehne, so we stick just to the fact. Other parties even consult patent professionals as experts. also such merger of interests is nothing special in Parliament. A working MEP has to establish contacts with the outer world. Many FFII activists share your very opinion on this particular issue, but it has to be noted that there was no campaign as you falsely think because of the Standard news report.


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/*Patents on CIIs are not equal to patents on "software as such", whatever that might mean.*/

It is known that EPO revised the interpretation of EPC 52 using the as such provision. While the EPC did not change the interpretation of EPO changed 180 degree.
 
 

 

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You can complain about "software patent", but on the other hand the term
"computer-implemented inventiion" was launched as to make it difficult to discuss which computer-implemented inventions isn't even inventions to begin with.

The commissions directive defines software running on a PC as being a CII.

This is in line with the
the language of the 2000 EPO trilatteral report that explains how computer-implemented inventions are processed.

http://www.european-patent-office.org/tws/appendix6.pdf

(1) The claimed subject-matter, which by definition includes elements such as a computer or code
which is intended to run on a computer, is presumed, prima facie, not to be excluded from
patentability by Articles 52(2) and (3) EPC.

Hence the difference between CII and "software as such" is "prima facie"
assumed not to exist.

But I agree that there is exists examples where a software patent is indeed a computer-implemented invention. Koch-Sterzel for instance.

--
Mvh. Carsten Svaneborg
http://gauss.ffii.org