FC: Eurolinux letter to European Commission against software patents

[Declan McCullagh <declan () well com>]

************

From: sf () fermigier com
To: declan () wired com
Subject: Eurolinux Proposals for EC Consultation on Software Patents
Date: Tue, 13 Mar 2001 08:51:42 +0100 (CET)

Eurolinux Proposals for EC Consultation on Software Patents

   The Eurolinux Alliance has sent a letter to the European Commission,
   asking them to resume consultations on software patentability which
   seem to have been interrupted.

   Munich, Brussels, Amsterdam and Leipzig

   The Eurolinux Alliance has sent a letter to the European
   Commission, asking them to resume consultations on software
   patentability which seem to have been interrupted.

   The European Commission had called for submission of statements on the
   question of how software should be treated by the patent system.
   Between Oct 15 and Dec 15 more than 1000 programmers had sent
   statements describing the negative impact of software patents on their
   work and calling on the European Commission to put an end to the
   practise of the European Patent Office (EPO), which has, in violation
   of the letter and spirit of European patent law, granted approximately
   30000 patents on problems of program logic.

   At the European Commission, the Directorate for the Internal Market
   (DGIM) is in charge of patent affairs and of the consultation. The
   patent law experts in charge at DGIM have during the past few years
   fully supported the position of the European Patent Office. The
   consultation paper published by the DGIM accurately restates this
   position. On Dec 21, the DGIM has hosted a conference of selected
   patent experts from the national governments and the European Patent
   Office, who unanimously encouraged the DGIM to go ahead and prepare a
   directive soon, so as to impose the practise of the EPO on national
   patent courts, many of which have been very reluctant to grant
   software patents.

   The Eurolinux Alliance of software companies and non-profit
   associations holds the "European Patent Corporation" responsible of
   having "illegally littered the information highway" with a "big pile
   of poisonous waste", a "Horror Gallery of European Software Patents".

   Frank Hoen, CEO of Netpresenter, the Dutch inventors web push
   technologies, explains:

     Patenting software ideas is like prohibiting the use of certain
     structure elements in the plot of a novel. It is ridiculous,
     because the difficulty does not lie in thinking up the individual
     elements but in putting together a well-formed complex work. If the
     EPO has its way, every one of our software projects will have to be
     followed by a few hundred expensive patent applications. And even
     then, we are at the mercy of predators who don't write software but
     just engage in the lucrative business of milking the software
     industry.

   Xuan Baldauf, CEO of Medianet GmbH in Leipzig and speaker of the
   Federation for a Free Information Infrastructure (FFII) adds:

     The patent lawyers at the Euoropean Commission are about to deprive
     us of our copyright to our own programs. At least they are making
     copyright worthless. And they are abolishing our freedom of
     expression. Just because programmers are a minority and most people
     are not fully aware of the nature of programming, these patent
     lawyers seem to believe that they can get away with stripping us of
     basic civil rights. They are acting against the Europe's legal
     tradition, which prohibits the patenting of programming solutions
     and, in general, any solution which can be validated by pure logic,
     without testing the effect of natural forces. The patent lawyers at
     the European Commission know this. They use traditional legal terms
     such as "technical character" and "technical contribution". But
     these terms no longer mean anything. They have been reduced to the
     status of political codewords. This reminds me of our politbureau
     of former days. Honnecker's friends spoke a lot about "people's
     democracy", "socialist realism" etc. Ten years after the peaceful
     revolution, I am surprised to meet again the same ambivalent
     Orwellian Newspeak, the same docile faith in party dogma, the same
     defiance of law and economics, the same reluctance to consult the
     public.

   Meanwhile, the EC consultation has apparently stalled, and only a tiny
   fraction of the submitted consultation papers have been published on
   the DGIM website.

Figures about the Petition for a Software Patent Free Europe

   Number of Signatures:
          > 70000

   Number of corporate sponsors:
          > 200

   Number of signatures by country:
          Germany (16663), France (11824), Spain (3959), Italy (3586),
          Denmark (3236), Sweden (2370), Netherlands (2119), Austria
          (1836), Belgium (1810), Switzerland (1440), Finland (1360),
          Czechia (974)

   Number of individual signatures by company:
          Siemens (112), IBM (109), Ericsson (97), Cap Gemini (82), SuSE
          (81), Nokia (71), France Telecom / Wanadoo (71), Alcatel (66),
          Hewlett Packard (52), Atos (48), MandrakeSoft (47), SNCF
          (French Railways) (30), ID PRO (30), Deutsche Telekom (29), SAP
          (29), Sun Microsystems (26), Oracle (21), EDF (21), innominate
          AG (21), Lucent Technologies (21), CERN (20), debis (20),
          Alcôve (18), Belgacom / Skynet (17), Nortel (17), Cisco (14)

References

     * Replies to the EC swpat consultation -
       http://europa.eu.int/comm/internal_market/en/intprop/indprop/softreplies.htm

     * The Eurolinux Software Patent Consultation Page -
       http://petition.eurolinux.org/consultation

     * Eurolinux Petition for a Software Patent Free Europe -
       http://petition.eurolinux.org/

     * Patents - http://swpat.ffii.org/vreji/pikta/index.en.html

     * EC Directive Proposal -
       http://swpat.ffii.org/stidi/eurili/indexen.html

About EuroLinux - www.eurolinux.org

   The EuroLinux Alliance for a Free Information Infrastructure is an
   open coalition of commercial companies and non-profit associations
   united to promote and protect a vigourous European Software Culture
   based on Open Standards, Open Competition and Open Source Software
   such as Linux. Corporate members or sponsors of EuroLinux develop or
   sell software under free, semi-free and non-free licenses for
   operating systems such as GNU/Linux, MacOS or Windows.

   The EuroLinux Alliance has co-organised in 1999, together with the
   French Embassy in Japan, the first Europe-Japan conference on Linux
   and Free Software. The EuroLinux Alliance is at the initiative of the
   www.freepatents.org web site to promote and protect innovation and
   competition in the European IT industry.

Press Contacts

   France and Europe:
          Stéfane Fermigier, sf () fermigier com

   Germany and Europe:
          Hartmut Pilch, +49-89-18979927

   Denmark and Northern Europe:
          denmark () eurolinux org

   Belgium:
          belgium () eurolinux org

Permanent URL for this PR

   http://www.eurolinux.org/news/pr0101

Legalese

   Linux is a registered trademark of Linus Torvalds.
   Windows is a registered trademark of Microsoft Inc.
   MacOS is a registered trademark of Apple Inc.
   All other trademarks and copyrights are owned by their respective
   companies.

************

From: sf () fermigier com
Subject: Eurolinux Open Letter to the European Commission Concerning Software 
        Patents Consultation
To: declan () wired com
Date: Tue, 13 Mar 2001 08:50:30 +0100 (CET)


Eurolinux Open Letter to the European Commission Concerning Software 
Patents Consultation

   The EuroLinux Alliance is quite surprised that the European
   Commission's Software Patent Consultation webpage seems to be
   stagnating since December. What is even worse, the Directorate for the
   Internal Market seems determined to go ahead with legalising software
   patents before conducting any consultation. The signatories spell out
   some basic requirements for a European Directive on the Limits of
   Patentability regarding Software and the way to get there. It
   describes a few test criteria and sets of test samples, against which
   any directive proposal is to be measured.


To: Frits.Bolkestein () cec eu int
Cc: Erkki.Liikanen () cec eu int

   Dear Sir, Dear Madam

   We are surprised to note that your [1]software patent consultation
   webpage seems to be stagnating since December. Moreover we are
   concerned about recent news that the Directorate for the Internal
   Market is seeking a mandate from national governments to draft a pro
   software patent directive without first concluding the consultation
   process. In view of this situation, we beg to propose the following:

     * Conduct a serious consultation first!
     * Judge the Directive by its effect on a set of existing borderline
       cases!
     * Courageously eliminate the minority of non-technical patents!
     * Starting points for drafting a directive

Conduct a serious consultation first!

   The letters submitted during the consultation should be published on
   the Internet immediately. This consultation round should then be
   concluded by a public hearing including some of the main participants,
   to with all concerned politicians at the ministerial and parliamentary
   level should be invited. Only after that can an order for the
   preparation of a draft directive be possibly given.

   So far, only very few of the numerous submissions sent to you through
   our gateway (consultation () eurolinux org) have not been published on
   your site. All submissions sent through our gateway should be
   considered as public except if mentioned otherwise. All other
   submissions will hopefully also be published, so that are open to
   public questioning and criticism, i.e. become part of a public
   consultation process. We can think of no reason for the delay. If
   preparing a nice website is time-consuming, why don't you just publish
   the raw materials in their original electronic form (or graphical
   files in case of paper submissions), so that others can do the work
   independently?

   In its invitation paper to government representatives, the DGIM claims
   that software patents are wanted by all the major trade associations,
   who "represent an overwhelming majority of European companies", while
   apparently only a loud minority of open-source programmers opposes
   software patents. Not only does the DGIM fail to mention that the
   Eurolinux Alliance is supported by numerous non-opensource companies
   of considerable size. It is moreover our experience that the quoted
   trade associations have no position whatsoever on software patents
   and, when asked, just hand over the question to their patent lawyer,
   who is usually a loyal member of the patent movement, characterised by
   a common credo of "the more patents the better" and complete disregard
   or even ignorance about the reality of software patents. Contrasting
   with this, the people in charge of R&D investment decisions in almost
   all enterprises, even large ones of the telecommunications sector such
   as Siemens and Philips, usually consider software patents more harmful
   than useful. But usually nobody would ever consult them. One exception
   to this has been a recent [2]British field study about patents in
   general, which concludes that they are "at best useless" in promoting
   innovation in SMEs.

   Under these circumstances, in order to conduct a correct consultation,
   it is absolutely necessary to reveal the identity those trade
   associations who allegedly support software patents and organise a
   real discussion. This is especially necessary in the current situation
   where those who are charged with moderating this discussion have in
   the past repeatedly shown themselves to be faithful members of the
   patent movement.

Judge the Directive by its effect on a set of existing borderline cases!

   The directive will be judged by its effect on the software and
   business method patents that have so far been granted by the European
   Patent Office. How many of these will be upheld in court in the
   future? Which kinds of patents will be rejected?

   Whatever the EU directive will be, it must be accompanied by a paper
   that cites a test sample of 50-100 EPO-granted software-related
   patents and shows how they would be judged according to the new
   directive proposal. A possibly suitable set of borderline cases would
   be

     [3]http://swpat.ffii.org/vreji/pikta/txt/ep1.en.html

Courageously eliminate the minority of non-technical patents!

   Most of the patents in a [4]list of 10000 European software patents
   compiled the FFII look rather scary -- in no way better than even the
   most trivial American software patents. Any new directive should be
   designed in such a way that such patents no longer stand a chance of
   being upheld in European courts. This could be achieved by formulating
   clear standards for either technicity or inventivity or both. It is
   self-evident that the current practise of the EPO cannot provide such
   a standard. Unfortunately the consultation paper of the DGIM is only a
   restatement of EPO practise. Like the EPO, it talks a lot about
   "technical contribution" but at the same time fails to provide a
   meaningful definition for distinguishing "technical" from
   "non-technical" contributions.

   As shown by a [5]preliminary study, a clear technicity standard could
   be used to reject the unwanted software patents without affecting the
   others, leading only to a rejection of about 3% of the current patent
   applications of the EPO. In view of the fact that the number of
   applications is swelling by a daunting 10% p.a., this type of soft
   reform may be welcomed even by the EPO.

   In view of [6]the overall poor performance of the patent system as a
   promotor of innovation, addressing only the technicity issue may be
   too soft an approach. Yet it is probably all that can be done within
   the scope of the currently envisaged directive.

Starting points for drafting a directive

   The Eurolinux Alliance has published a directive proposal as part of
   its submission to the EC consultation:

     [7]Regulation about the invention concept of the European patent
     system and its interpretation with special regard to programs for
     computers

   The Eurolinux regulation proposal gives a clear interpretation for the
   current law, which corresponds to the traditional viewpoint of many
   patent law experts, as it is still upheld by some European lawcourts,
   such as the 17th Senate of the German Federal Patent Court (BPatG).

   Moreover the Eurolinux regulation proposal has a desired effect of
   eliminating approximately 30000 out of 1 million European patents, as
   was shown by the above-mentioned study currently conducted by the
   FFII.

   The Eurolinux regulation proposal should therefore be taken as one of
   the starting points from which to build a European Software Patent
   Directive. In case special anti-cloning protection is really demanded
   by the software industry, as the DGIM claims in its invitation paper,
   Mark Paley's [8]Model Software Patent Act could provide a useful
   source of inspiration.

   We moreover propose that some of the judges of the 17th Senate of the
   German Federal Patent Court be consulted in drawing up the Directive.
   If possible, some less faithful and more critical patent professionals
   like Dr. Kiesewetter-Köbinger, a former programmer and current patent
   examiner at the German patent office who has written an
   [9]particularly lucid analytical paper on the software patentability
   question, should be called to Brussels to help draw up a draft
   directive.

   We would feel very obliged if you seriously pursue the consultation
   and do everything in your might to identify and defend the public
   interest.

   Yours sincerely

   Jesus Gonzales-Baharona
   Stéfane Fermigier
   Anne Östergaard
   Nicolas Pettiaux
   Hartmut Pilch
   Jean-Paul Smets
   Luuk Van Dijk

Permanent URL for this document

   http://www.eurolinux.org/news/pr0101/dgltr/indexen.html

References

   1. http://europa.eu.int/comm/internal_market/en/intprop/indprop/softreplies.htm
   2. http://info.sm.umist.ac.uk/esrcip/background.htm
   3. http://swpat.ffii.org/vreji/pikta/txt/ep1.en.html
   4. http://swpat.ffii.org/vreji/pikta/txt/index.en.html
   5. http://swpat.ffii.org/vreji/pikta/txt/epr10002.en.html
   6. http://swpat.ffii.org/vreji/minra/siskuen.html
   7. http://swpat.ffii.org/stidi/eurili/indexen.html
   8. http://members.aol.com/paleymark/ModelAct.htm
   9. http://swpat.ffii.org/vreji/papri/patpruef/indexen.html

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