[Nottingham] Patents considered harmful?
Peter Woods
nottingham at mailman.lug.org.uk
Thu Sep 4 19:34:01 2003
I wrote to as many MEPs as I could find for
this "constituancy", 1 for each party.
They almost all ignored the question, which
was "What is your position?"
and one blasted back that "stating patents
are a bad idea is not good enough"
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Dear Peter Woods
To persuade me how to vote on this, one way
or the other, you need to tell me more than
"It is a very bad idea".
Can you give me your reasons, please ?
Bill Newton Dunn
(Continued at end.)
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~~~~~~~~~~~~~~~~~~~
In-Reply-To:
<003e01c314d6$bf986ba0$672089c3@wavdqqrm>
Dear Mr Woods,
Thank you for emailing me with regard to the
Software Patentability
Directive.
The main issue under consideration in the
development of this Directive is
under what circumstances patents should be
granted for software
programmes.
The main bone of contention is whether
software programmes are a technical
invention, and should thus be patentable, or
whether software programmes,
due to their nature as a collection of
algorithms, cannot be defined as an
invention per se, and should thus not be
subject to patentability laws. If
software programmes are defined as codes, or
algorithms, then patenting is
not necessary as the code in its written form
is protected by copyright
law.
By allowing patents for software, there is a
risk that software innovation
will become restricted, due to the expense to
smaller companies to pay the
licence fee to a large company to use its
patent. On the other hand, by
permitting patenting of software, smaller
innovators can benefit from
licensing out their software programme.
Whilst I see the value of harmonising
European standards, in its current
form the Software Patentability Directive
proposed by the European
Commission would amend the patentability
criteria laid down in 1972 by the
European Patent Convention to a patenting
regime modelled on that of the
United States, at the very moment when
critics in that country are
forcefully condemning it. The proposal has
also been strongly criticised
by the Economic and Social Council of the EU
and the German Monopoly
Commission, as well as by Liberal Democrats
in this country.
This legislation is still in its very early
stages - it will be some time
before the final shape of the Directive is
known. However, please rest
assured that along with my Liberal Democrat
peers I will be working to
amend the Directive as it stands.
Yours sincerely,
Nick Clegg MEP
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
~~~~~~~~~~~~~~~~~
From: "Paddy Casswell"
<casswellp@labmeps-emids.fsnet.co.uk>
To: <peterwoods@f2s.com>
Sent: Wednesday, August 06, 2003 9:23 AM
Subject: Fw: Software patents
Dear Peter Woods,
Thank you for your correspondence concerning
the draft directive on the
patentability of computer-implemented
inventions, and I apologise for the
delay in responding. I have discussed the
issue at length with my colleague
Arlene McCarthy MEP, who is a member of the
European Parliament's Legal
Affairs Committee which has been dealing
with the draft directive. I am
indebted to Arlene for the information
below.
The European Parliament's Legal Affairs
Committee has voted on the
rapporteur's report on the directive and
there will be continuing debate and
further democratic scrutiny before the
directive becomes law.
At this early stage of legislative process,
it is nonetheless important to
establish the facts about what the draft EU
directive and what the
Parliament's rapporteur are aiming to
achieve in the amendments tabled to
the Commission proposal.
It has been suggested that the Parliament's
report will for the first time
allow the patentability of
computer-implemented inventions. This is
simply
not true. The patenting of
computer-implemented inventions is not a new
phenomenon. Patents involving the use of
software have been applied for and
granted since the earliest days of the
European Patent Office (EPO). Out of
over 110,000 applications received at the
EPO in 2001, 16,000 will have
dealt with inventions in
computer-implemented technologies. Indeed,
even
without an EU directive, these patents will
continue to be filed, not only
to the EPO but also to national patent
offices.
As you will be aware, in the US and
increasingly in Japan, patents have been
granted for what is essentially pure
software. Some EPO and national court
rulings indicate that Europe may be drifting
towards extending the scope of
patentability to inventions which would
traditionally have not been
patentable, as well as pure business
methods. It is clear that Europe needs
a uniform legal approach which draws a line
between what can and cannot be
patented, and prevents the drift towards the
patentability of software per se.
The rapporteur's intention is clear in the
amendments tabled and in a new
Article 4 in the text, to preclude; the
patentability of software as such;
the patentability of business methods;
algorithms; and mathematical methods.
Article 4 clearly states that in order to be
patentable, a
computer-implemented invention must be
susceptible to industrial
applications, be new, and involve an
inventive step. Moreover the rapporteur
has added a requirement for a technical
contribution in order to ensure that
the mere use of a computer does not lead to
a patent being granted.
Furthermore, the amended directive contains
new provisions on decompilation
that will assist software developers. While
it is not possible to comment on
whether any patent application would be
excluded from the directive, the
directive, as amended, would not permit the
patentability of Amazon's
'one-click' method. As far as software
itself is concerned, it will not be
possible to patent a software product.
Software itself will continue to be
able to be protected by copyright.
With an EU directive, legislators will have
scrutiny over the EPO and
national court's decisions. With, in
addition, the possibility of having a
definitive ruling from the European Court in
Luxembourg, thus ensuring a
restrictive interpretation of the EU
directive and a greater degree of legal
certainty in the field of patentability of
computer-implemented inventions.
Some concerns have been raised that the
directive may have an adverse effect
on the development of open source software
and small software developers.
The rapporteur supports the development of
open source software and welcome
the fact that the major open source
companies are recording a 50% growth in
world-wide shipment of its products.
In the amended proposal, the rapporteur has
imposed a requirement on the
Commission to monitor the impact of the
directive, in particular its effect
on small and medium sized enterprises, and
to look at any potential
difficulties in respect of the relationship
between patent protection of
computer-implemented inventions and
copyright protection.
Many small companies have given their
support to this directive, which will
give them more legal certainty as it offers
the possibility of protection
for their R&D investment, and so assists in
spin-off creation and technology
transfer and generating new funds for new
investments.
Indeed recently, a small ten-person company
in an economic black-spot in the
UK granted a licence to a US multinational
for its voice recognition
software patents. Without European patent
protection in this field, the
small company could have found itself in the
perverse situation whereby its
R&D efforts and investment would simply have
been taken by a large
multinational company, who, with its team of
patent lawyers, would have
filed a patent on this invention. The EU
company could have been faced
subsequently with patent infringement
proceedings.
Some lobbyists would like us to believe that
having no patents is an
option - it is not. No patents would put EU
software developers at a severe
disadvantage in the global market place, and
would hand over the monopoly on
patents to multinational companies.
The work the rapporteur has done is an
honest attempt to approach this
matter objectively, and to produce balanced
legislation, taking into account
the needs and interests of all sectors of
the software development industry
and small businesses in Europe. No doubt
there will be more debate and
refinements to the legislation before a
final text is agreed under the EU
legislation process.
At a time when many of our traditional
industries are migrating to Asia and
when Europe needs increasingly to rely on
its inventiveness to reap rewards,
it is important to have the option of the
revenue secured by patents and the
licensing out of computer-implemented
technologies.
Software development is a major European
industry. In 1998 alone the value
of the EU software market was ?39 billion.
Most of this will be protected by
copyright, but genuine computer-implemented
inventions must have the
possibility, for the future of
competitiveness of our industry, to have
patent protection.
Yours sincerely
Mel Read MEP
> ----- Original Message -----
> From: "Paddy Casswell"
<casswellp@labmeps-emids.fsnet.co.uk>
> To: "Peter Woods" <peterwoods@f2s.com>
> Sent: Tuesday, May 13, 2003 11:59 AM
> Subject: Re: Software patents
>
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Dear Mr. Woods,
Many thanks for your enquiry. The report on
Software Patents is due to be discussed in
Parliament at the end of this month (May
22nd) in the Committee on Legal Affairs.
Phillip will be consulting with his
colleague, Arlene McCarthy, a Labour MEP who
sits on this Committee and will reply to you
as soon as he has established a position on
the matter.
Best wishes,
Laura Sullivan
Office of Phillip Whitehead MEP
ASP13G158
European Parliament
Rue Wiertz
B-1047 Brussels
Tel: 32 2 284 7459
Fax: 32 2 284 9459
www.labmeps-emids.fsnet.co.uk
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
~~~
Dear Mr Woods
Thank you for contacting The UK Independence
Party.
Our 3 MEP's continually vote against the
increasing interference - that is
the reality of the EU - in our lives.
I am sure that they would vote in a similar
manner in this very sensitive
area.
Tom Wise
----- Original Message -----
From: Peter Woods <peterwoods@f2s.com>
To: <jtitford@ukip.org>
Sent: Wednesday, May 07, 2003 9:46 PM
Subject: Software patents
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This one came as a .DOC !!!!!!!!!!!
Dear Mr Woods,
Software Patents
Thank you for your email regarding the
upcoming Directive on the patentability of
computer-implemented inventions (software
patents) currently under discussion in the
European Parliament. The European Commission
published the draft Directive in February of
last year as it become increasingly clear
that European law on patenting software
needed to be clarified.
The aim of the Directive is to set out and
defend the status quo in Europe following
changes to the patent system in the USA and
also planned for Japan. There is a clear
intention across the EU Member States to see
that Europe does not follow the USA and Japan
in allowing widespread patent availability
for software and business methods. Copyright
will remain the principal method of
protecting intellectual property in these
cases. I and my UK Conservative colleagues
support the general line that the Commission
has taken which builds on and clarifies the
existing patent law across the European Union
and makes it clear that only software which
forms part of a technological process will be
patentable. This will allow patents to be
provided for genuine technical inventions and
stimulate European economic development in
areas of economic strength like mobile
telephony, digital television and computer
controlled machine tools to name just a few
possibilities. Contrary to the impression
given in your letter and some misguided
lobbying within the Parliament there is no
intention what so ever to allow generic
patenting of software in Europe.
I believe that the radical change of making
the patent system more permissive or more
restrictive is unjustified. The legal
thresholds for granting software patents in
the USA and Japan are set too low and recent
court cases in the USA have led to patents
being granted for computer-implemented
service activities. In Europe, the granting
of patents has always required a technical
effect. I agree with the European Commission
and the UK Government that the American
approach will not stimulate innovation in
Europe. Change through a more restrictive
approach to the patenting of generic
software, algorithms and business methods
creates more problems than it resolves. It
would question the validity of existing
patents and discourage innovation, leading to
greater uncertainty in the technology market.
Such an approach would also conflict with
national laws in the Member States;
international treaties including TRIPS, and
existing practice in Europe.
The proposed Directive would set a fair test
for software (deciding whether it has a
technical effect) before authorising a
patent. Any technical invention in a field
outside software can be patented so it does
not make sense for technical inventions,
which happen to use computers to be excluded
from the system. The Parliament is proposing
amendments to clarify the text while ensuring
that its principles are supported.
Codification of the existing position will
also avoid raising complicated issues of the
validity of existing patents across Europe or
allowing current unpatentable technologies to
claim new patents. This will allow European
businesses the chance to develop ideas with
certainty as to their legal position. It
will also reduce the pressure from companies
holding permissive American software patents
who wish to gain an extension of their patent
rights in Europe.
Thank you once again for your email. My
Conservative colleague Malcolm Harbour MEP is
taking the lead on this matter and he is
keeping a close eye on developments.
Yours sincerely,
ROGER HELMER MEP
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I got back to the first cheeky *********d.
I still don't know what the party line
is!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
!
Dear Mr Woods
Thank you for sending me your arguments.
I did not say, and you should not have
assumed, that I did not know about the
proposal.
My request back to you was that you can
hardly expect to persuade someone how to vote
by merely sending someone a message that "it
is a bad thing". To win an argument, to
persuade people, me or anybody else, you need
to explain your reasons.
When the group of Liberal MEPs has finished
its own internal debate about how to vote on
this, and I will include the points you made
in the argument, then I will let you know how
we have voted.
Kind regards
Bill Newton Dunn
>>> "Peter Woods" <peterwoods@f2s.com>
05/12/03 10:03 >>>
I was hoping that you would already be aware
of this. It is a little disconcerting that
MEPs are making law without being informed.
If you do have a position, I would be
grateful if you would make it known.
Since you ask, I am not a politician or
lobbyist, so I can only make a brief case:
Patent protection stifles innovation in
software development among small companies
and programmers by creating a legal minefield
only the richest of corporations can
navigate.
In the US mundane software devices can be
registered for patent protection. The US and
Japan allow patents on a wide range of
software, and they both permit patents for
business methods. Business methods include
obvious things like one-click purchasing, for
which the online retailer Amazon.com received
a patent in the US in 1999. Amazon used the
patent to get an injunction against rival
Barnesandnoble.com, but an appeals court
lifted that injunction.
The following scenario could be transformed
from continental to intercontinental: Small
firms go unnoticed by the big software makers
until they create something really special.
Then they start to receive letters from
patent lawyers representing big firms who
either want to buy a licence for their
software cheaply, or they try to drive them
out of business. They hope to pick up the
idea for next to nothing in the bankruptcy
court after their target has been sunk by
astronomical legal fees. A patent suit is one
thing that can kill a small firm.
Some argue that European software developers
will be at a competitive disadvantage to
their American counterparts without patent
protection. This might be a valid case for
large software companies. However, there is
only one large software company and that is
US based: the monopolist Microsoft. The next
largest, IBM and Sun, are feeble by
comparison and no european company competes.
The only credible counter to monopoly Windows
is open software.
Patents for software will put at risk the
work of coders working on open software and
the businesses of millions of companies who
rely on free, open software to run their
computers.
Laura Creighton, of Swedish groupware
developer AB Strakt and of British publishing
software company Reportlab, said, "If Europe
adopts this software patent law I'm going to
have to redirect millions of money I planned
to invest in European software firms into a
fund to cover patent infringement suits."
If the directive is passed there will be a
surge in patent applications in Europe as
occurred in the US in the late 1980s. I
understand that there are 30,000 patent
applications already waiting to be legalised
in Europe.
We need laws to ensure software developers
are paid for their work, but patent law is
the wrong way to do it. Patent law only
benefits the big developers. Software has
been protected by copyright since it was
invented. Application of existing law is
required, not new law.
I would still like to hear your position on
this matter.
Peter Woods (Mr.)