[Fsfe-uk] Re: [Patents] Re: [Free-sklyarov-uk] Reply from Arlene McCarthy MEP

[Bernhard Kaindl]

Hi,
   I removed address@hidden, even it's good that it's been posted there
and I'm much in favor of posting such things there, I choos not to send
this to address@hidden because there are also pro-swpat people on this
list and I'm trying to give my strategic views and I don't want to tell
them to pre-patent people directly...

I added the FSFE-UK Mailing List <address@hidden>, it's very low volume
and from the last posts it's quite concentrated on swpat issues and seems
to be also quite private, so I read this list regulary, I can't promist
it of free-sklyarov-uk, because it also discusses EUCD issues and I'm
not interested in it at the moment because I can't influence EUCD anymore
and my priority until September 1st is 100% software patent issues.

However, I'll set up a procmail rule: 'search for "patent" and move/copy'
which should help me to divide the two different topics of free-sklyarov-uk.

Sorry for this long intruction, but I never posted to this list before
and I just had to say this. free-sklyarov-uk is a good list, but IMHO
it's really two lists.

On Thu, 17 Jul 2003, Rui Miguel Seabra wrote:

> Note that what I write is aimed as remarks to points and not really
> suitable for an answer:
>
> On Wed, 2003-07-16 at 23:27, phil hunt wrote:
> > ------------- begin --------------
> > Response to your correspondence regarding the draft EU directive on
> > patentability of computer-implemented inventions.
> > Date: Wed, 16 Jul 2003 16:10:06 +0100 (BST)
> > From: Arlene McCarthy <address@hidden>
> > To: address@hidden

Wow, You got a reply from Arlene McCarthy, you know that she is the
rappoteur of this directive?
It was her professional job for the commission
to further improve the proposal and put it to plenary.

You should know that talking to her is like if the we would be the
citizens of Israel and talk to Arafat. Hey Arafat answered, quite cool...

> > The European Parliament's Legal Affairs Committee has voted on my report on
> > the directive and there will be continuing debate and further democratic
> > scrutiny before the directive becomes law.
>
> Yes. The one debate before EP scrutinity that will set forward the
> mine-field deployment.

I don't know what "scrutinity", my dictionaries don't have it but for
the rest I agree.

> > At this early stage of legislative process,
>
> Early? I'd say we're pratically at the _end_ of the legislative process.
> After voting *for* human-thought patents member countries have a short
> time to legislate likewise.

Right, it might be her perspective, but by telling people wihch want to
influnce it, that we are early, she fulfills her goal to put this thru
the plenary as quickly and as unmodified as possible. This directive
is *her* product and now she just wants to get the egg onto the ground.

I said from her perspective, because her report is running under the
codecision procedure, which means that the presentation of her report
is called the "1st reading" in terms of the codecision procedure.

To verify this, go to www.europarl.eu.int, click on
Activities->plenary sessions, Agenda->by part session,
"1 September 2003   -   4 September 2003"->Draft agenda
->Monday 1 September 2003

Then you have the page with the agenda of September, 1st. Look at the
first entry:

Report: Arlene McCarthy (A5-0238/2003)
 - Patentability of computer-implemented inventions

In front of it you see the sign "***I", click on it and you
get this explanation:

Codecision procedure (***I)
majority of votes cast to approve or amend a legislative proposal
majority of votes cast to adopt a draft legislative resolution

This means, for a decision in the 1st reading, a majority of the votes
decides what happens. If the majority approves or amends the proposal,
it is sent to the Council of the Ministres, and if they approve it as
well, they put it in legislation.

If there is no majority possible of September 1st which approves or
amends the proposal, and there is no majority to draft a resolution,
there will be a 2nd reading with different rules.

For further info how it would go on, read about the codecision procedure
below this label:

http://www.europarl.eu.int/presentation/default_en.htm#powers

> > 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).
>
> We're talking about the EP or the EPO? Is she trying to deliberatly
> confuse a casual and uninformed reader?

I think so, however, I think our argumentation should focus on how it would
affect SME's which will have problems if the JURI proposal is adopted.
unmodified.

Besides this, we could back this with numbers of employees and turnaround
numbers of SMEs which will be affected if the JURI proposal is adopted.

I have seen some survey for this on some UK page, but I can't find it ATM,
I think just collecting numbers of possible victims should be good.

> >  Out of
> > over 110,000 applications received at the EPO in 2001, 16,000 will have 
> > dealt
> > with inventions in computer-implemented technologies. Ind
> > ed, even without an EU directive, these patents will continue to be filed,
> > not only to the EPO but also to national patent offices.
>
> But without the directive proposal, none of them has real legal power.

Except in UK, as far as I have read(AFAIK also against the letter of the
UK law). Also Germany was listed, but latest information from one of the
leading judges indicates that German judges are stepping back to a more
balanced few which is also welcomed by the FFII as good example for the
rest of Europe.

> They're less useful than toilet paper, which at least is soft enough.

I think the fact that they are not very useable in most EPC countries,
directly does not mean that they have no value:

a) UK courts would take decisions which accept their legalitiy and if
   an infringing company has an office arm in the UK, they can approach
   the infringing company country to pay litigation or take them to court.

b) If other nations change their legislation for some reason(I think the
   EPC has been joined even more nations than the EU) the same would apply
   for these nations.

c) The patent blocks against someone else getting a patent for the same
   invention.

d) The companies can show the numbers and say "We are a powerful company",
   to clients and financial instutions/analysts.

e) There is the fear that the law could change in the future so this already
   scares companies to not follow certain product ideas

f) The same fear applies to the adoption of open source in companies, and
   goverments. They may fear that the open source products they evaluate may
   violate patents which might come into effect someday. This is an advantage
   for companies like Sun, Mircosoft and SCO when there is direct competition
   in product selection between closed source and open source.

e) The companies can trade(cross-license) the patents for use for all of
   the above.

> > 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.
>
> The EPO's practice indicates that Europe is not 'maybe drifting' but has
> already drifted. The proposed directive will only make that not a
> drifting but the general rule.

Yep, exactly. I think it may help to turn the wheel
towards US-style patentability another round, because
it would widen the range of interpretation.

> >  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
> > oftware per se.
>
> There is a clear line in the European Patent Convention: software is not
> patentable.

"as such". It may, as far as I understood be patentable if it is used
to allow in a real invention, but the software as such is not patentable,
it would only be a part of the specific new and inventitive device.
(I'm not a patent law expert...)

> > My 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 I have 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.
>
> All software can be applyed to industrial applications.
> Nothing in software is so new that it is radically different.
> Almost everything rational involves an inventive step. The invention may
> be utterly irrelevant or obvious, though.
> What is a technical contribution according to this directive? If you add
> a restriction that restriction must not be vague or undefined. It should
> manipulate forces of nature.

Excellent, AFAICT.

> > 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.

BTW, the last sentence is a antagonism in itself, if I understand it
correctly.

> Exactly how? This question has yet to be answered. Arlene McCarthy
> claims they are not specialists, so how can they say this?

Good point, btw, her reply looks very much make just a repeated send of
a prepaired, generic mail which wants to catch all. I assume most of
it can be found on the web somwere, at least some sentences looked
very familiar for me.

> If they know for sure, then please do explain, because we who know
> something of the area are convinced that it would pass (just like so
> many others, for isntance, the test suite at ffii.org).
>
> As far as I see it:
>    "Amazon One-Click Shopping must be a patentable invention
>    in Europe, because it can be implemented in a mobile phone just as
>    well as on a general-purpose computer"

Looks like a good argumentation, at least you know what she is telling
all the people (and other MEPs asking likely as well) and we can prepare
answers like this to counter her arguementation when talking to other
MEPs which might be able to vote against the directive.

We can't expect that she will be voting against her directive work for
more than the last year, nobody will bust such work quite easy. So I
think we have to start with other MEPs(to oppose them to the proposal
of JURI, that's enough for now) and use the knowledge gained by this
reply to counter the arguments of McCarthy when talking to them.

Bernhard

[snip - other half of the mail not adressed for now]