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Workshop held by German Federal Ministry of Economics and Technology on July 10, 2001 on "Micro- and Macroeconomic Implications of the Patentability of Software Innovations: Intellectual Property Rights in Information Technologies in Terms of Competition and Innovation"
On July 10, 2001 an expert workshop was held by the German Federal Ministry for Economics and Technology in Berlin. About approximately some 60+ attendants listened the presentation of preliminary results of a study jointly conducted by Fraunhofer Institute for Research on Systems and Innovation (ISI), Karlsruhe, and by Max Planck Institute for Foreign and International Patent, Copyright and Competition Law, Munich. Among the attendants were a lot of Officials from the German Federal Ministry for Economics and Technology (BMWI) as well as from the German Federal Ministry of Justice (BMJ) and from the Italian and Swedish Governments. Moreover, Officials from the German Patent and Trade Mark Office (DPMA), from the European Patent Office (EPO), from the UK Patent Office, from the Danish Patent Office, from the Austrian Patent Office, and from The National Board of Patents and Registrations of Finland were also seen there as well as two judges from the German Federal Patent Court (Bundespatentgericht). A representative of the CEC was present. Also some Patent Attorneys and representatives of the Industry attended. The BMWI had invited patent critics from the Free Software scene, namely Mr. Pilch from ffii e.V., Mr. Gerwinski from the Free Software Foundation Europe e.V. (FSE) as well as Mr. Ebinger and Mr. Siepmann from the Linux Verband e.V. The study presented on a preliminary basis in Berlin consisted of two parts:
The Berlin workshop was chaired by Ms. Weber-Cludius of BMWi. It seems to be clear that the German Government is undertaking a very broad in-depth preparatory work in order to clarify this rather complex subject-matter before attempting to define the final German position with regard to the anticipated EU directive as well as to the "Second Basket" of another EPC Revision Conference. The fact that despite earlier announcements the CEC still has not yet presented any draft for the planned directive seems to give more room for extended preparatory work. No final political proposals of the ISI/MPI study have been presented in Berlin. They said that the results of the discussion on the workshop might be considered when drafting the final version. Generally the self-assessment of those who filled in and returned the ISI questionnaire was such that there is a broad feeling of lack of knowledge with regard to the way in which the patent system works. Hence, all more detailed results of the questionnaire survey have to be weighed with that fact that those providing the answers feel that they don't have much insight into the patent system. A result seems to be that from an overall perspective currently patents don't play a big role in software business in Germany - neither actively (patenting own inventions and enforcing such own patents) - nor passively (defending against patent of a competitor). There is no general sympathy for the U.S. patent system; a global harmonisation on the level of current European practice would be preferred by many software companies. There is virtually no sympathy for pure business method patents anywhere in the software branch. The strategic use of patents in international competition is obvious, says the study, but concentrated on very few large companies. In particular, the empirical work of ISI has clearly uncovered a consensus within the software branch that Free Software ("Open Source Software") is expected to considerably gain importance in economical terms in the entire software world within next coming years. OSS developers as well as other non-OSS freelance programmers were identified as a group having the strongest fears and reservations against negative effects of the interference of the patent system with the software business. The empirical study seems to make clear that these facts should be taken into consideration when making final political decisions. According to the study, the companies see in the increasing proprietising of software a danger for the further development of Open Source as a kind of public good that on principle is available for use by all economic units and thus in the sense of the New Growth Theory promotes the general technical progress and therefore innovation dynamics. Furthermore, negative effects for competition are expected because the number of companies will shrink, says the assessment of the respondents. The current legal situation in Germany and Europe with regard to patenting software related inventions has to be considered unsatisfactory, says the study: It is not only impossible to find a reasonable interpretation of the statutory exception for "computer programs as such" but the provision also causes a tremendous amount of doubtful arguments which is incomprehensible not only for outsiders: The line of reasoning becomes very questionable, and the substantive consideration tends to be neglected. There was no clear indication how the result of the comparative legal study of the MPI can seamlessly be interwoven with the economical language of the ISI in order to obtain workable political proposals. Moreover, attendants might get an impression that ISI and MPI have suffered some difficulties in finding a common political ground for elaborating any common more-than-declaratory proposals to be delivered to BMWi based on their respective findings. The workshop ended with a presentation held by Mr. Webb of the UK Patent Office on the results of the general UK consultation on Software and Business Methods Patents. No simple consensus was perceivable in the results thereof. There is a strong feeling that patent law needs clarifying with regard to software inventions. No patents on pure business methods are wanted.
Axel H Horns
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