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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Monday, January 16, 2006Story Time.Yesterday, Groklaw edited by Ms. Pamela Jones has published a nice piece of anti-patent propaganda titled "Quietly Tying Down Gulliver - The SW Patent Fairy Tale". This text is said to be authored by Mr. Cristian Miceli who introduces himself as an "IT Lawyer". The whole story is placed in between a grid of seven antithesis called "myths"."Myth 1: the European Competiveness Council, the European Commission and the Council of Ministers, as the white knights of European democracy and with our (European) best interests at heart, gallantly proposed a directive which, in its several drafts, sought to do nothing more than to codify and unify our existing laws on patents (commendable) in the area of computer related inventions whilst at the same time not extending the scope of patentability."The author wants us to tell that this statement is a myth because of "if the actual words of the various drafts were so clear, why did the EU Parliament propose substantial amendments at the first reading, why did the Legal Affairs Committee of the European Parliament (JURI) vote overwhelmingly to restart the legislative process and, finally, why was a directive rejected for the first time in European history at its second reading?" Well, in my view cross-party groups of MEPs in the European Parliament, influenced by the immense propaganda efforts of the FFII, intended to cut back patent protection available for computer-implemented inventions in Europe. In contrast, the EU Commission as well as the EU Council have worked hard in order to preserve the status quo. I can hardly see any logic so far in the statement of Mr. Miceli concerning this so-called "Myth 1". "Myth 2: Patents for 'software inventions' have been granted for many years by the EPO so they must be valid and part of the 'existing law' which the Commission was trying to unify and codify."Mr. Miceli argues again in a circle by stating that "When an act that is illegal gets carried out repeatedly without sanction it is understandable that many might subconsciously or otherwise consider such act legitimate. For our storytellers, the granting of patents for 'software inventions' has never been seen as prohibited but instead as 'part of the existing law'. Therefore, they could declare that Myth 1 was correct because for them, if the CII Directive allowed software patents it would not be an extension of patentability." So if he, in perfect accordance with all the relevant lines of the FFII propaganda, considers the Case Law of the Boards of Appeal of the European Patent Office (EPO) to be "illegal" or, what might be the same in this context and sometimes used by anti-patent activists, a result of perversion of justice, then, but only then the grant of patents on CIIs in the past would have been contrary to law. However, this is of course only wishful thinking of Mr. Miceli. The power to interpret the European Patent Convention (EPC) resides in a legitimate way with the Boards of Appeal of the European Patent Office. This Office including its Boards of Appeal has been properly created on the basis of this multilateral treaty duly signed on behalf of all of its Member States and also duly ratified by their respective Parliaments. Arguing that the entire Case Law of the Boads of Appeal is contrary to law is a negligible dissenting minory opinion, indeed."Myth 3: The only interest group protesting about the CII Directive allowing software patents through the back door were open source software companies and individual developers."There was no "back door". Patents on CIIs have been allowed by the competent Boards of Appeal for many years. "Myth 4: Software patents are good for the IT industry and necessary for innovation"Economy is not science. You can't simply set up some differential equations bearing economic variables, solve them, and use the result to run an economy. Politics deals with the power and the declared intention to give public affairs a shape. "Myth 5: SMEs support software patents"No all SMEs do support patents on CIIs. However, some SMEs utilising the patent system have managed to be a larger enterprise after some years of strong growth. "Myth 6: Europe has over 40,000 software patents and the IT industry continues to thrive"Mr. Miceli argues: "The negative effect that software patents have on the software industry has not yet manifested itself in Europe precisely because of the dubious legality of the software patents granted by an administrative body, the EPO. For software patents to work their destructive magic, they must be no doubt as to their legal status yet in Europe not one software patent has been successfully enforced. Therefore, without 'legal bite' in Europe (compare this to the US situation of the very real threat of triple damages for infringement) these software patents have been worthless pieces of paper - they would have become very valuable had the Common Position been accepted since the EPO's unlawful extension of the patent system would have received the formal seal of approval - which could not be used by IT companies to demand licence fees and/or block new entrants to the market." This is again a circular argiung based on some thesis wich shall be proved, namely that patents on CIIs as granted by the EPO are contrary to law. This is not true, and such patents are already enforced. "Myth 7: TRIPS and article 27"Mr. Miceli argues: "However, this argument is fundamentally flawed for it requires us to accept that 'technology' includes software. As noted above, software is not 'technology' for patent purposes and is expressly excluded from the scope of patentable inventions in Article 52 EPC." Again, circularity. If CIIs are of a technological nature, then they are patentable not only in accordance with the Case Law of the Boards of Appeal of the EPO but also in accordance with TRIPS. Well, the entire article looks as if it was from the first line to the last line deliberately drafted to be precisely aligned with the usual propaganda dispersed by FFII and other anti-patent activists like Mr. Florian Müller. It appears not to have that conceptional, concise and logic-driven style texts written by a lawyer normally tend to have. And the name "Cristian Miceli" seems to be rather unknown even to Google when taken in conjunction with "law" or something similar. Not to forget that the LASP blog redirected from http://www.lasporg.info/ has been opened only recently, being rather silent with regard to the person of Mr. Miceli. And what does the plural form "Lawyers" in LASP intend to mean? Are there more lawyers lurking behind the scenes? Ok., I have to admit that nevertheless it might well be that an IT Lawyer Mr. Cristian Miceli is just now sitting somewhere in the UK, perhaps in York, watching what happens after the launch of his article. But I must confess that, under these circumstances as set out above, I would not be overly surprised if some day news would emerge saying that "Cristian Miceli" was in fact a pseudonym for somebody else.Technorati Tags: Patents, EPO, Law, Europe, CII
Alex Thanks for your constructive comments. I am very real I can assure you of that. I am sorry that my name sounds 'unreal' and I am sorry that you don't agree with my line of reasoning. Everyone is entitled to their opinion, ideas are free to circulate for the benefit of us all (although not if those promoting knowledge patents have their way). I am disappointed that you might think this is propaganda rather than an article written by a lawyer who unlike many IT lawyers has actually worked with those people that make software, developers. I have listened to their concerns and those of the industry and seen the damaging effects of patent litigation in economic terms (add up the costs alone from the settlements last year in the US) on the industry irrespective of the social and moral problems of locking down ideas. I do not pretend to be an expert. I recognise that there are many people in this area with much more expertise than me and I am always happy to be proved wrong. I would like to give your detailed comments the consideration time they deserve and where I feel you are right and I am wrong I will be happy to post publically these comments. Unlike you Alex, I don't derive any income from Patents. The article was written from the heart and in my own time. As for my blog, it was set up only recently because I have a day job which does not involve making money at the expense of harming long term innovation and I am a part-time blogger and no more. The reality of a person is not measured by whether they appear on a google search or not. I do exist, I am not a paid puppet of the FFII (unlike certain rather infamous lobbying organisations of pro-software patent organisations) and I am sure my previous employers and also old clients would be happy to provide you with all the "evidence" you need to confirm my existence and also the statements I made in the article about why I wrote the article. Finally, should this not be sufficient, I would be more than happy to buy you a coffee (I don't think you can expect me to buy you lunch just yet) if you happen to be in my part of the world. I am posting this comment on my blog as I notice 'comment moderation' is activated. Kind regards the very real Cristian Miceli  Post a Comment
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