European swpat update letter

Patents: Ian Clarke copied the FSFE-IE mailing list with a good mail he sent to Mairead McGuinness MEP, detailing the current state of proposed fixes to the European software patenting directive. He discusses a comment from an Ericsson employee asking for software patentability:

It may be the case that this employee was concerned about Ericsson’s ability to compete against smaller competitors if Ericsson cannot use software patents against them. I would argue that it is not the responsibility of any EU institution to protect Ericsson against legitimate competition from other companies, indeed competition must be encouraged. Software patents will have a stifling effect on competition in Europe, and this is why some large companies like Ericsson are strong advocates for this directive.

And a brief overview of the amendments we want:

The Foundation for a Free Information Infrastructure, an organisation whose line we endorse, has prepared an analysis of the amendments, indicating which will help to ensure that software patents do not become patentable, and which will not. This document may be downloaded here.

In particular, we support the position and amendments of Piia Noora Kauppi MEP, who has taken a strong position against the introduction of software patents within the EPP group, and also the position of Michel Rocard MEP who is the rapporteur for this Directive.

The only other thing it misses, in my opinion, is a paragraph discussing the ‘as such’ loophole that has been heavily relied upon by most pro-swpat politicians recently — the trick of saying ‘this directive does not permit software patenting, as such‘.

Indeed, it does not permit patenting of all software techniques, but instead permits the patenting of software techniques as long as it is of ‘a technical nature’ — without defining what that means. Given that it’s clearly arguable that all software is technical, and since patent offices earn money based on the patents they accept, rather than those they reject, this is a loophole the size of a bus. Many of the desired amendments concern cleaning up this obvious omission.

Anyway, here’s the full text of Ian’s mail from the list archive.

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