[ILUG] ILUG sends s/w patents briefing document to Irish MEPs

[David Golden]

On Thursday 17 March 2005 12:59, Paul Jakma wrote:
> Well, it _is_ based on current office /practice/. I believe the
> commision when they say that.

I'm not denying that, either. But the practice is wrong, and, as I said, 
the EPO needs to be reined in. Or maybe just lined up and shot. 
Whichever.

> Further, AIUI, this practice didn't arise simply cause the EPO (and
> other offices) don't give a stuff for the wording of the EPC - it
> came about because of rulings in various member states (Germany most
> particularly AIUI).
>

AFAIK the rulings in Germany derived from EPO practice, not vice-versa:
I think  that the german court (BGH) used an opinion of the EPO enlarged 
board of appeal" to support its ruling - can't find the exact 
reference, least not anything I can make head nor tail of (my german is 
rusty) but see e.g. Uwe SHAREN: 
http://swpat.ffii.org/akteure/index.de.html
"one of the BGH judges who followed the EPO's lead in making software de 
facto patentable in Germany"

 I think we have a case of tail wagging dog, dog wagging tail and  I'd 
be wary of considering precedent set by such courts* binding (and n.b. 
not that precedent counts as much in continental europe, as I 
previously outlined).

Anyway, it really annoyed the german monopoly commission, who criticised 
the decisions:  See  http://www.esr-pollmeier.de/swpat/intro.html , 
search "Monopoly Commission" 

Digression: As an aside, I note they also wanted a unified european 
patent court under the european court of justice -perhaps not in itself 
a bad idea, but would there be sufficient separation of powers / 
avoidance of conflict of interest? Given the track record, I have 
doubts: 
http://europa.eu.int/comm/internal_market/smn/smn33/a17_en.htm

The german minsistry of economics then also used a paper by an 
exceptionally rabidly pro-patent  patent attorney (Axel Horns) to 
support pro-patent positions - they apparently considered a patent 
attorney (one who apparently without a hint of irony uses GPG and 
XML/RSS on his blog, amusingly enough), rather than software writers  
experts on whether software should be patented.  

This is, as far as I'm concerned, basically asking aspiring slave 
masters rather than the potential slaves whether instituting slavery is 
fair. 

And I did say "mostly untested" - why should 20-odd other countries 
follow  Germany?  When the BSA (yeah, the BSA...) were ghostwriting 
[GW] the original software patent proposal for the commission ca. 2002, 
ISTR they freely acknowledged that it was only the (rather suspect) 
ruling in the german courts that  supported their position

[GW] http://petition.eurolinux.org/pr/pr17.html?LANG=en


> That is, I don't really think the commision (or vast majority of
> politicians really) care about the gorey details of whether software
> should be excepted from patenting. I think they're approaching this
> from the pragmatic angle of just harmonising whatever is the
> generally acceptable practice - which is not a /bad/ goal per se.
>

Problem is what is "generally accepted" by patent lawyers and 
corporatists whom the law would most benefit, runs counter to what 
those members of the  public whom the law would most seriously 
adversely affect (i.e. us**) generally accept, and in a lot of cases, 
what the public thinks the laws say. - Or else so many people wouldn't 
be objecting (... and being told they don't constitute an "economic 
majority" (one euro one vote?)  so should bugger off.)

** (Actually, that's not quite true,  I expect patents to have less of 
an effect on Free Software than on small-time proprietary software 
houses,because we've got the most efficient means for finding prior art 
to invalidate patents, and free software as a social movement can 
probably take the long view and wait out patent terms, though it would 
mean that free software would _really_ always be forced to just copy 
earlier proprietary software innovations, lending some truth to the 
propaganda currently belied by free software projects like Beagle that 
have at least parity with if not the edge on proprietary similar 
projects like WinFS )

> Further, there are other concerns, eg TRIPP. Any EU position would
> need to be compatible with it.
>

Not sure what TRIPP is, but TRIPs states "software shall be protected as 
a literary work." (article 10, paragraph one).  Patenting software 
pretty directly undermines such copyrights, unless I guess one were to 
hold that books and artworks should be patented or something (which 
some people do...)

People who claim to need software patenting to comply with TRIPs are 
presumably hoping to sweep that under the rug,  and then hoping their 
opponents can't be arsed reading TRIPs, which is actually pretty 
unclear (presumably intentionally), and never comes out and says 
software patents are required to comply with TRIPs e.g.
http://swpat.ffii.org/stidi/trips/index.en.html 
has a consistent reading of TRIPs which would preclude software
patents.

>
> I believe you're mistaken here - unless the commision outright
> blatantly lied in the proposal. 

Well, they may be being economical with the truth.

Interestingly, while they still hold the patents to have been 
legitimately granted, the commission themselves now acknowledge the new 
law is needed to make it clear that the patents are *enforceable* - 
i.e.  right now, the software effects can only be "contributory 
infringement" at most even by the EPO's interpretation, but they want 
it to be "direct infringement" (and they present this change as a good 
thing... right...).

This is on page 3, sect 3.1..1 of their last communication,
http://register.consilium.eu.int/pdf/en/05/st07/st07291.en05.pdf

So the commission itself acknowledges their enforceability across
the EU is currently questionable (but regards that as evidence they need 
to be made definitively enforceable rather than definitively 
unenforceable)

This IS really a substantive change in the law, and so I think at this 
stage it should be quite evident that it's not just mere 
"harmonisation" they're after, but "harmonisation" to the most 
pro-patent position they can get.

So even with no new directive, people will probably still be able to
get what are effectively software patents in several european 
jurisdictions, but apart from empty legal threats (themselves chilling 
effects, granted), would have a difficult time actually enforcing them.

So no directive is still better than a bad directive, IMHO

> No, it wont be a new law. It'll be a new /directive/ which member
> states will have to conform to.

Well, that's quibbling a bit, though some countries fortunately have a 
history of sticking the finger up at some directives.   

Digression: thing I hate is national politicians go "oh, I know the law 
is unpopular, but look, the EU requires it" (... and please pay no 
attention to the fact we pushed for the directive outside democratic 
scrutiny while it was being written in the EU)

> Having it apply only to patent holders is impossible ;) - who'd file
> a patent? :)
>

Note: the following is my personal opinion, using it to characterise
the opinions of other objectors to software patents would be deeply 
misleading, as I am rather more extremist than most of them 
(why e.g. I only donate to IFSO, rather than considering myself a 
member).

Exactly. Fuck 'em.   Only those who are selfish enough to want to be 
able to restrict other people's use of ideas should be themselves 
restricted. As Jefferson so eloquently pointed out with stuff about 
lighting tapers, ideas aren't much like physical property. 

There might be a case for restricting me from squatting in your house - 
we can't both occupy it. Or for restricting me from eating your apple - 
once I eat it, it's gone and you won't have it.  So "property"  makes 
some sense in the physical realm.

But both of us could write software that controls a braking system. 
(though unless you have a similar mechanical engineering degree to me, 
I'd expect mine to win out in a free market ;-) )

Letters patent are a hangover from the time  a king had absolute 
authority to decide what could and could not be done in his realm and 
handed out open ("patent" as in "patently obvious") letters to his 
favoured  cronies, saying they and only they could do $WHATEVER. 

Merchant influence weakened the letter patent, but a real free market 
that economists wax lyrical about can't exist until patents (and 
copyright for that matter) are abolished.    If the government wants to 
interfere in the market to "help" inventors, they should award small 
inventors grants, or give them preferential treatment in tenders
or something, not restrict what other people can do.

So as far as I'm concerned, I won't be willingly obeying any patent laws 
any time soon, anyway, if anything I consider it my civic duty to 
disobey them. Trouble is that with the law, they could make my life a 
lot more inconvenient, obviously.

> Initially patents were scoped primarily to cover technical ideas.

AFAIK they were scoped to cover implementations of ideas -> mechanisms, 
one possible way of solving a problem. The problem is that in software, 
they tend to cover all possible ways of solving the problem, for 
roughly the reasons you outlined /  including black-box "software on a 
computer" as a part of a larger mechanism, like "gearwheel", without 
describing the software in detail / or the fact that for algorithms, 
there's only really one approach possible.