english

Conclusions from the ISOC-SE 2004-08-23 meeting on the directive on patents for "Computer Implemented Inventions" in EU

In short, attending patent lawyers and software innovators at the meeting had very different perspectives on what effects the Councils proposal could have.

Main issues were:

Program:

Erik Josefsson on The German proposal to the Council:

The German proposal was very constructive to define the core concept "technical contribution" in terms of use of natural forces, physical effects and technical features. Other countries like Denmark had earlier in the process also proposed definitions in the same spirit along the lines of applied "scientific knowledge". There was widespread support for the German text. This support was hijacked when the text was discarded on such short notice that the Danish representative had to ask where it was at the moment of his vote.

The German proposal would have made it possible for the Parliament to take the Council proposal seriously. As it stands now, the definition of "technical contribution" is circular and unclear, and will be of no use in keeping US-style business patents out of Europe.

http://www.ffii.org/~blasum/isoc20040823/ISOC-SE20040823.html

Michael Andersson on the patent system and software patents

Michael thinks the directive will affirm current praxis with no further effect on the legality of patents in Europe. He also assures that the parliaments limitations in the previous shape of the directive would harm the patent system and innovations as it would stop inventions in fields as computerized car engines or GPS-navigational systems. He uses the metaphor of a farmer that looses his crop due to others just taking it away to give emphasis to the importance of protecting investments with the use of patents.

Jonas Bosson on innovation, growth and protection:

Jonas: As a software developer it is easy to ridicule the low level of inventiveness in software patents granted at the European Patent Office. But the real cause of this problem is the misconception of pure software as patentable inventions rather than intellectual methods as excluded in patent law.

The Internet is the leading forum for development and knowledge sharing,
and has this far promoted innovations in software and protected software using copyright law. But software patents will hamper knowledge sharing since inadvertent patent infringement is far too easy. The danger is overwhelming as the directive allows granting of pure software patents, that are broad as a result of natural abstractions in logic, and cover infinite number of virtual realizations of intellectual methods as inventions.

The directive should strengthen the demand for the invention to be outside the mere logic and within the 'use of forces of nature'. Otherwise Europe might not have much to contribute in software development as we then become hostages of major patent holders in an arms race on ownership of the fundamentals in intellectual reason.

David Axmark on MySQL's stand on software patents

David told us about his experience with software patents, and MySQL's official stand against them. His experience with the larger investors in the US was that they where interested in whether MySQL had problems with software patents, not if MySQL had any patents in software. Software patents seem to cover most basic things, one of many investigations into patents even showed that the mere storing of data on a hard disk with some kind of indexing has been considered a patentable technical effect.

David concludes that the EU-directive as proposed by the Council is not making life easy for innovators in Europe, but expose small expanding companies to a patent mine field with rules adopted from cold war terror-balance. Using the methaphor of a crop: The whole self produced crop may rotten while competitors are in long disputes over the rights to its possible use. And in a terror-balance situations the big players are the natural 'winners'. But even big companies must live in fear of being sued by companies outside of the terror-balance like Acacia who while based in the US are likely to buy patents in every jurisdiction where they can make money. It is unlikely that any larger scale patent threats or litigations will happen in Europe, considering the limited legal status, before the current directive becomes law.

Panel debate:

Michael Andersson, Jonas Bosson, Erik Josefsson, Dag Hedefält, FMV,
patentengineer.

Q> Publication / Svenskt Näringsliv
A> Erik and Jonas says publication of source code, even free dito might
get into trouble, but Dag and Michael thinks that this is not the case.

Q> Any computer programs not patentable with the Councils proposal?
A> No awnser.

Q> Example of software patent? / it-delegation (gov)
A> Michael gives an example of gps-navigation, but Jonas argues this to
be a non issue since it involves forces of nature and is not just a C.I.I. The discussion on patents like the 'SignOn'-forms-patent is saidly left outside the now quite upset debate. Can we please discuss the issue at hand asks Erik, the directive is about plain programs, not inventions found elsewhere in relation to computers. Dag draws the abstract image showing an input/output box, and explains that the inside is not patentable, but the outside description is. Jonas replies that the outside is the same as the inside of the box when it is a matter of computer programs, and that this makes the danger evident.