taint.org: Justin Mason’s Weblog

Patents: One of the key arguments in favour of the new EU software patenting directive as it’s currently worded, from the ‘pro’ side, is that it doesn’t ‘allow software patents as such’, since it requires a ‘technical’ inventive step for a patent to be considered valid.

Various MEPs have tried to clarify the meaning of this vague phrase, but without luck so far.

Coverage has mostly noted this as meaning that ‘pure software’ patents are not permissible, for example this Washington Post article, FT.com,and InformationWeek.

But is this really the case, in pragmatic terms? What does a ‘technical inventive step’ mean to the European Patent Office?

Well, it doesn’t look at all promising, according to this report from the Boards of Appeal of the European Patent Office from 21 April 2004, dealing with a Hitachi business method patent on an ‘automatic auction method’. The claims of that patent application (97 306 722.6) covered the algorithm of performing an auction over a computer network using client-server technology. The actual nature of this patent isn’t important, anyway — but what is important is how the Boards of Appeal judge its ‘technical’ characteristics.

The key section is 3.7, where the Board writes:

For these reasons the Board holds that, contrary to the examining division’s assessment, the apparatus of claim 3 is an invention within the meaning of Article 52(1) EPC since it comprises clearly technical features such as a “server computer”, “client computers” and a “network”.

So in other words, if the idea of a computer network is involved in the claims of a patent, it ‘includes technical aspects’. It then goes on to discuss other technical characteristics that may appear in patents:

The Board is aware that its comparatively broad interpretation of the term “invention” in Article 52(1) EPC will include activities which are so familiar that their technical character tends to be overlooked, such as the act of writing using pen and paper.

So even writing with a pen and paper has technical character!

It’s a cop-out, designed to fool MEPs and citizens into thinking that a reasonable limitation is being placed on what can be patented, when in reality there’s effectively no limits, if there’s any kind of equipment involved beyond counting on your fingers.

The only way to be sure is to ensure the directive as it eventually passes is crystal clear on this point, with the help of the amendments that the pro-patent side are so keen to throw out.

(BTW, I found this link via RMS’ great article in the Guardian where he discusses software patenting using literature as an analogy. recommended reading!)

Tags: appeal, article, board, computer, european, meaning, network, patent, patents, software, step

Patents: An anonymous contributor writes:

‘I just received this letter and these pre-addressed postcards in the post this morning. I was surprised when I saw the envelope, because I’d never received anything from the BSA before. It turned out that they had extracted my name and address from the European Patents database, because I registered a software patent once. So a lot of these letters have been probably been sent out.

According to the letter, from Francisco Mingorance, the draft directive is being turned around to ‘rob small businesses of their intellectual property assets’.

I find it hard to see how that could be true. However the BSA’s letter has an important message you should heed - it is critical to contact your European representatives (your MEP and your country’s Commissioner) within the next two weeks. Let them know that the European Union should curtail software patents for once and for all.

Get out your best stationery and write to your MEP at the address given on this page.

Make sure your message is short and clear. SME’s don’t benefit from patents. Few patents are held by SME’s and the cost of applying for, maintaining and defending them is crippling.’

jm: I would suggest noting that you support the position of rapporteur
Michel Rocard MEP, and/or the FFII — details here. Please do write!

• scanned JPEG of cover letter
• scanned JPEG of some of the postcards

BTW, the contributor also offers: ‘if anyone is interested in doctoring up the BSA postcards, I can provide the hi-res scans.’ ;)

Tags: bsa, contributor, european, jpeg, letter, mep, message, patents, post, sme, software

Ireland: Worth watching for european software-patent watchers, Forfás, Ireland’s ‘national policy advisory board on enterprise, trade, science, technology and innovation’ are running a series of monthly seminars on ‘Intellectual Property’ in association with Licensing Executives Society Britain and Ireland.

This one looks quite interesting — 10 June: ‘Patenting Software - The Current State of Play’, Author Barry Moore, of Hanna Moore & Curley, patent attorneys.

Interested parties can attend with pre-registration, or wait to download the mp3 at Forfás’ website, apparently, along with the rest of the lecture series. (No sign what the license is on those files, though ;)

Tags: board, enterprise, european, forfs, ireland, policy, science, series, technology, trade, worth

Patents: So the Conference of Presidents has ratified the JURI decision to throw out the flawed software patents directive text. Phew! That’s a lot more pressure on the European Commission. Charlie McCreevy could still carry on his attempt to steamroller European democracy on this one, but it looks likely that he wouldn’t get away with it now — possibly facing sanctions as a result.

Found in a Slashdot comment — an amazing quote from Michel Rocard (former French Prime Minister, now European Deputy), recounting a meeting with Microsoft representatives on the software-patent issue:

“We never could (speak) a common language with the companies representatives we met - in particular those from Microsoft. Speaking about (the free circulation of ideas), free access to knowledge, was like speaking chinese to them. In their way of thinking, everything that is not usable for immediate profit ceases to be an engine of growth. They don’t seem to be able to understand that an invention which is a pure spirit creation (sic) can’t be patented. It’s simply terrifying. Many of us, at the Parliament, agree to say that they never have know such a pressure and such a verbal violence during their parliamentary work. It is a huge case.”

In addition, he takes aim at the Irish Presidency’s tactics:

“To adopt it formally, there is an expeditious procedure — the (A-item) at the Council of Ministers, where the it is adopted without discussion. The Irish and Dutch presidencies attempted this tactic three times, twice at meetings of the (Fisheries Council)! This is simply scandalous.”

Blimey, he’s really pissed off. Great! Go Rocard! ;)

See here for the original interview (in French), and here for a bad Babelfish translation.

In happier news — take a look at some pictures from the presentation of 30,000 verified signatures (and flowers!) from people around the world, thanking the Polish Government for their repeated stands against the flawed directive in December.

Tags: conference, council, decision, directive, european, microsoft, patents, phew, pressure, software, text

Patents: Patents4Innovation is a new site set up by several European multinational companies to lobby for the legalisation of software patenting in Europe.

Their FAQ is good for a laugh, including an answer that basically says that the Patent Office needs to do a better job, and another which states that opponents of software patents have been unable to demonstrate any ‘convincing’ evidence of swpats causing economic harm (despite the FTC and PriceWaterhouseCoopers reports, which are pretty high-profile organisations).

But the best quote — in fact, the only quote — appears on their Testimonials and Quotes page. Here is in full:

“… successful and profitable high-tech enterprises seem to be characterised by holding patents and copyrights. These instruments might reduce the vulnerability of firms with respect to competition and equip them with a more favourable market position.”

Source: the “Observatory of European SMEs 2002 / No 6: High-tech SMEs in Europe”, commissioned by the European Commission

(My emphasis.) Of course, there’s nothing worse than having to compete on a level playing field. ;)

(Thanks to Christian Beauprez for spotting that!)

Tags: european, faq, innovation, laugh, legalisation, patents, quote, site, smes, software

Patents: Now that the summer break is over, software patents are back on the EU’s agenda. The FFII (via EDRI-gram) reports

On 24 September 2004, the European Council will probably meet to rubber-stamp the ‘political agreement’ achieved on 18 May 2004 on the highly controversial software patents directive (2002/0047 COM-COD).

According to the FFII the text was designed to mislead ministers about its real effects. ‘It consists of many sentences of the form or ’software is … unpatentable, unless … [condition, which, upon closer scrutiny, turns to be always true]‘.’ And, states FFII, ‘It can be said with certainty that only a minority of governments really agrees with what was negotiated, but several governments were misrepresented by their negotiators, who broke intra-ministerial agreements or even violated instructions from their superiors.’

More info:

• FFII Urgent call to National Governments and Parliaments (04.06.2004)
• FFII call for action against software patents (07.09.2004)
• FSF Europe open letter to EU presidency (06.09.2004)

Tags: agenda, break, call, council, edri-gram, european, ffii, patents, september, software, summer

Patents: FFII: Conferences and ‘Patent Riots’ in Brussels 2004-04-14
: ‘The Foundation for a Free Information Infrastructure (FFII) calls on its 50.000 European supporters and on 300.000 petition signatories, including more than 2000 CEOs of European software companies, to take to the streets in Brussels on April 14 and in national capitals around 1st of May, and to temporarily block access to their websites, in protest against new moves by the EU Council and Commission to legalise patents on computerised calculation rules and business methods’.

Last year, the European Parliament voted to exclude software and business methods from patentability. Now, it appears the EU Council is secretly planning to push that through regardless — so FFII are planning another round of protest for 2004-04-14.

In other news — the European Patent Office and other pro-patent bodies have always insisted that the WTO Trade-Related Intellectual Property (TRIPS) treaty required that software be patentable. However, this poster thinks not:

Article 10 of said treaty clearly states: a.. ‘Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).’

This is the strange thing you see, the statement doesn’t seem to mean that much on first glance. It is only when reading it closely that one realises that it does not simply say that ‘computer programs are automatically copyrighted under the Berne Convention’, it specifies they ’shall be protected as literary works’.

Literary works cannot be patented because they are not inventions. Indeed if literary works could be patented one would have to concede that books, screenplays, and music could be patented as well although according to my research there is no provision for this in law. We would also have to apply patent laws to these areas since we are not allowed, apparently under article 5 to restrict on the basis of the field of technology.

On reflection, it’s actually a very interesting comparison. Like literary works, it’s not the idea of what software does (the plot summary) that makes it valuable, it’s all the fiddly details of its implementation (the full story). Hmm! Maybe TRIPS got that right after all…

Tags: article, business, computer, council, european, ffii, patent, patents, protest, software, treaty

Tech: Great. More on the ‘prevention of banknote scanning’ thread; Ed Felten notes that the European Central Bank is

considering recommending legislation to the EU to require inclusion of currency recognition into digital imaging products. Predictably, the ECB’s proposal is wildly overbroad, applying to ‘any equipment, software, or other product’ that is ‘capable of capturing images or transferring images into, or out of, computer systems, or of manipulating or producing digital images for the purposes of counterfeiting’. As usual, the ‘capable of’ construction captures just about every general purpose communication technology in existence — the Internet, for example, is clearly ‘capable of … transferring images into, or out of, computer systems’.

Let’s hope that proposal gets shot down in the way it deserves.

Tags: bank, banknote, central, computer, european, great, prevention, proposal, tech, the, thread

Great news from the European Parliament — the good amendments have been passed and it looks a lot better. James Heald of FFII is quoted as saying ‘the directive text as amended by the European Parliament clearly excludes software patents. It hangs together incredibly cohesively.’

Congratulations to our MEPs who grasped the highly technical nuances of the issue, and voted the right way, and to the groups who advised them so well. No congrats to me who went on holidays just before this vote. ;)

Now, all that remains is to ensure that the Council of Ministers also do the right thing; unfortunately FFII note that ‘in the past, the Council of Ministers has left patent policy decisions to its patent policy working party, which consists of patent law experts who are also sitting on the administrative council of the European Patent Office (EPO). This group has been one of the most determined promoters of unlimited patentability, including program claims, in Europe.’ Not encouraging.

Meta: still catching up and getting through the jetlag…

Tags: council, directive, european, ffii, lot, ministers, news, parliament, patent, policy

Sounds like the pro-swpat lobby has taken an interesting tack in their PR; IDG’s Infoworld reports that:

The European Parliament is likely to support a law that permits software patents but limits their application to inventions that have a technical effect outside of just a computer program. A program could only be patented if it runs in conjunction with some sort of device such as an intelligent household appliance or a mobile phone.

But bizarrely, that’s exactly what the proposal does not suggest, and that’s exactly what the anti-swpat lobby want it to suggest! Totally, totally wierd.

Tags: application, european, idg, infoworld, law, lobby, parliament, program, software, tack

Despite heavy opposition from a coalition of European SMEs and the Greens/EFA faction of the European Parliament, and despite 2 committees suggesting large amendments, Arlene McCarthy’s pushed the patent ‘reform’ through the JURI committee of the European Parliament. It is now going to be debated in an EP plenary in 10 days time. It seems likely there’ll be a vote on adopting it then, too. We’re being railroaded here. :(

If you are a European and bothered by software patents, now is the time to write to (or even email) MEPs asking them to oppose this directive; it’s the ‘proposed software patentability directive as amended by JURI’ (COM(2002)92 2002/0047).

The letter should support the Eurolinux and/or Green position.

I’ve already received one reply, from Nuala Ahern, a Green MEP for Leinster, who’s happy to take the Greens/EFA line (and responded very quickly, all credit to her!). But the question is, who else among the Irish MEPs is likely to vote on this issue – and how do we effectively lobby in such a short time?

Some background links:

• The list of Irish MEPs
• Why software patents are bad for software developers
• The results of the UK Patent Office’s consultation on software patents
• Examples of bad software patents already issued in the US
• Examples of bad software patents already issued in the EU (somehow)
• Details of the proposed directive amendment

Anyway, if it passes it’s not the end of the world, according to Karl Lenz; I’m not sure I agree with his conclusions though ;)

Tags: directive, efa, european, green, greens, meps, parliament, patent, software, time

Well, despite the covert bugging of the European Council offices of 3 major EU delegations, the apparatus of some states, at least, is bringing a smile to my face. The German federal secret service, the Bundesnachrichendienstes (BND), has just published Topf Secret, their official cookbook. Really. The Guardian notes:

The book consists of recipes sent in from around the world by German spies in the field. Thus, there are two recipes from Iraq, several from central Africa, the Philippines and Scotland.

Again, more questions than answers. The Germans have spies in Scotland? Do they really eat haggis? (’Attention: fill only 2/3 of the stomach since the oat flour will expand. If the stomach is too full it can explode while cooking!’) Do the two recipes from Iraq - for fattousch and tabouleh - have to be so boring (use only crunchy lettuce leaves for the fattousch)? Why are there German agents in Iraq? What are they doing in the US as well, and do they like that nation’s recipe for pumpkin pie?

Tags: apparatus, bugging, bundesnachrichendienstes, council, european, face, fattousch, service, smile, stomach

Yahoo!: Deadline Passes for European Digital Copyright Law. ‘A deadline for adopting a new EU law on copyright protection has passed with just two member countries signing up, dealing a blow to media and software companies beset by unauthorized duplication of their works across the Internet.’ The two countries are Greece and Denmark, which is odd, considering I thought Ireland had do so too.

Other actors in the private sector, such as Internet service providers, have weighed in heavily on the issue, opposing laws that could ultimately hurt consumer rights.

Yay ISPs!

Tags: copyright, deadline, digital, european, internet, law, member, passes, protection, yahoo

According to the Minister for Communications, Marine and Natural Resources, Mr. D. Ahern, Ireland will “transpose into Irish law the requirements of European Parliament and Council Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector” before the end of 2003.

It will be nice to be able to point to the law, eventually — for what that’s worth. Since most spammers are USian, relaying via other countries, actually acting on the law will not be quite so simple. But it will be an improvement.

Tags: communications, council, directive, european, law, marine, minister, natural, parliament, transpose