Re: [Fsfe-uk] Software patents

[Bernhard Kaindl]

On Wed, 9 Jul 2003, Phil Driscoll wrote:

> 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). Applications are on
> the increase, at the EPO 110,000 applications were received, 16,000 of them
> dealt with inventions in computer-implemented technologies. Concern has been
> raised that if matters are left as they are, Europe will drift towards
> extending the scope of patentability to inventions, which traditionally would
> not have been patentable. If the EU does not take the step to develop its
> competence with regard to computer-implemented inventions, then the EPO and
> its boards of appeal will continue to be the main arbitrators of the law.

Ok, the above are just the word of McCarthy about the question "What is the
current situation?" Only the last sentence of the answer has been omitted.

A html version of the original "debugging McCarthy" working document is here:
http://swpat.ffii.org/vreji/papri/eubsa-swpat0202/amccarthy0305/index.en.html

(I find it visually better readable as the pdf
 http://patents.caliu.info/aboutMcCarthyConsiderations.pdf in acroread)

> The aim of the proposal going through the European Parliament is to harmonise
> and clarify the law, to stop the expansion of the patents system, and stem
> the current drift towards broadening the scope of innovation in software that
> can be patented.

This is just a a slightly edited version of the first sentences to the
question: "What are the aims of the proposal?" in McCarthy's note.

> There is a need to ensure that patents for
> computer-implemented inventions are granted on the same footing across the
> European Union and that national courts can deal with contested patents on
> the basis of uniform principles and within an EU legal framework.

Again, next sentence, just a little reformulated from the original:

"To ensure that patents for computer-implemented inventions are granted on the
same footing across the European Union and that national courts can deal with
contested patents on the basis of uniform principles and within an EU legal
framework."

> An EU
> directive should not allow the extension of patentability, but neither should
> it exclude patent protection altogether. Small software developers should not
> have to face a minefield of poorly granted patents for obscure or obvious
> patents.

This is the second sentence of the answer to:
"What are the objectives of the report?" in McCarth'y note.
(the html file I refer to above includes all this and comments about it)

> The Directive must allow open source software to flourish.

This is the first sentence of the next paragraph.

> Labour Euro MPs will continue to monitor closely the directive through the
> European Parliament.

Very cool a sentence that is not copied/reformulated from McCarthy's note.

But it's good to see the last two senctences with the rest of McCarthy's
bad note omitted.

You could answer by asking if there is no doubt if the term "technical"
which is used many times in the directive would not be interpreted
with the directive as it is interpreted by the EPO, which patented
many business methods under the provision being "technical" and this,
the patenting of business methods is just one example which european
citicens do not want(there is consensus about it).

So this is just one example to demonstrate that the directive will
no achive the goals it has set itself because it's contructed this way.

There is more material on the term "technical" by experts such as
Renier Bakels who point this out(I want to collect all the info
on it anyway...)

Bernhard