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[DMCA-Activists] Heise on EU Council's SW Patent Intransigence
From: |
Seth Johnson |
Subject: |
[DMCA-Activists] Heise on EU Council's SW Patent Intransigence |
Date: |
Tue, 24 Feb 2004 13:27:30 -0500 |
(Software is not patentable in Europe. The European Patent
Convention established in the 70's that software "as such" was not
patentable. Of late, the EU Parliament stood up and spoke clearly on
the issue, rebuking the EU Commission's bizarre Directive on
"Computer-Implemented Inventions," purportedly designed to "clarify
existing practice" when in fact it was designed to legitimize the
European Patent Office's illegal practice of granting software patents
in direct contravention of the law (interpreting "as such" in
incredibly weird ways). The EU Parliament did the clarification that
the Commission had pretended to do, thoroughly amending the Directive to
make it perfectly clear that by no means could it be used to allow the
patenting of software. Now, in the final legislative step, the EU
Commission sends back nearly the same Directive for final ratification
by the Parliament, hoping to convince the EU Parliament that either they
were clueless or they had been duped by activists who had alerted them
to the game that was up. -- Seth)
> http://www.heise.de/english/newsticker/news/44931
EU Council agitates for unlimited software patents
Published 24.02.2004 09:58
Faster than expected, the Council of the European Union, currently
presided by Ireland, has defined its position in the controversial
discussion on software patents. Its working paper about the issue is
scheduled for discussion in the "Intellectual property" working party on
March, 2nd. But even before, software patent opponents like the
Foundation for a Free Information Infrastructure (FFII) meet it with
harsh criticism. Main issue of the comments on FFII's website: The
council's experts have cancelled almost all of the patentability
limitations on "computer-implemented inventions" which have been agreed
on by the European Parliament after long and controverse debates in
September 2003.
"Cancelled" or "reformulated" is the standard comment in the footnotes
whenever the new text speaks about the changes of the Parliament. The
Council does some small concessions to the software patent opponents,
i.e. the impact of the EU legislation for "small and mid-sized companies
and the Open Source movement" shell be examined. This is however, no
"compromise" in any way, FFII counters the Council's terminology. "It's
as if in a debate on whether or not we should raise the speed limits on
the roads, the compromise would be to raise them and additionally remove
the requirement to wear seat belts", Belgian FFII spokesman Jonas Maebe
comments on the proposal.
FFII is especially concerned about the renewed displacement of an exact
definition for "computer-implemented inventions". Now, the "technical
contribution", which is to be decessive for granting a state-run monopol
protection in form of a patent, shell be measured only by "how far the
patent claimed item [...] is raised above the state-of-the-art". Arguing
this way, the Council's authors follow the so-called "holism theory",
FFII's Hartmut Pilch says. This theory, however, is said to be out of
the question thoughout the complete technical literature. In the end, it
would allow "technical" protection claims for everything, including
patents on business methods, which is explicitly against the targets not
only of the EU Council, but also of the EU Commission and the
Parliament, as such items should be generally unprotectable and excluded
from the directive. The core of the present patent jurisdiction and the
Parliament's version of the directive, namely dataprocessing not being
"technically", would be lost, Pilch warns in an interview with heise
online. Such an approach does even contradict international treaties
like the TRIPS convention of the World Intellectual Property
Organization (WIPO), normally one of the patent lobbie's favourites. A
clear definition of "technicity" in the directive is indispensable.
Additionally, the FFII sees a provocation in the Council's attempt to
permit patent claims also on the source code of a computer program by
the means of the directive's resurrected article 5 (2). Patent opponents
do fear especially an extreme constraint on publication freedom, as
developers, distributors of software, and generally information
providers, simply by only hosting patent-protected code in the net, will
come under heavy fire of the patent justice. Those information providers
could be handled just as "suppliers of industrial goods". Furthermore,
FFII misses the interopability privilege, which has been introduced by
the Parliament and shell prevent monopols on technical standards. Also,
the Council has removed the demand on patent owners to publish their
protected program codes for public interest.
FFII sees a strategy behind the "complete confusion of terms" Pilch
finds immanent to the Council's working paper. It's a sign, Pilch says
to heise online, to establish the European Patent Office's boards of
appeal and their broadened practice as real patenting standard for the
future: "It seems as if the Council's working party wants to bury the
whole directive". Then, a European gouvernment conference could cancel
article 52 of the European Patent Convention, which currently prohibits
protection claims on programs "themselves" - at least by wording. To
prevent this from happening, FFII would prefer that not only the members
of the EU Parliament but also national parlamentarians took the chance
to stronger influence Bruxelle's legislative by motions of a resolution.
Thanks to Dirk Hillbrecht for the translation of the German news
article.
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