Re: [Fsfe-uk] Software patent MEP response

[Alex Hudson]

Hi Jim,

On Sun, 2003-05-18 at 11:35, Jim Peters wrote:
> It was good to be introduced to the AFFS and the people involved in it
> through yesterday's conference.

Glad you came along and enjoyed it!

> On the issue of European software patents, I recently wrote to all the
> West Midlands MEPs, and I have had one interesting response already.
> I typed it in for the benefit of UKCDR list members, and it can be
> viewed here:
> 
>   http://www.xenoclast.org/free-sklyarov-uk/2003-May/004817.html
> 
> I am personally not reassured, but it is clear that some more research
> is necessary before replying.

Well, the response is certainly interesting, although there are possibly
some glimpses of light. 

"Change through a more restictive approach to the patenting of generic
software, algorithms and business methods creates more problems than it
resolves.  It would question the validity of existing patents (...)" 

... probably says it all. They're not willing to budge from the current
position of allowing some types of software patents.

This is, I guess, an understandable position, if not a desirable one. 
So the first line of attack is probably to ensure the they codify any 
attempt at the 'status quo' as tightly as possible. Stuff like:

"The proposed Directive would set a fair test for software (deciding
whether it has a technical effect) before authorizing a patent."

... is useful. What is this proposed wonder test? What is the hard 
definition of 'technical effect'?

"(...)  there is no intention what so ever to allow generic patenting
of software in Europe."

... okay, but how? Are they going to rely on this shaky 'technical effect'
term? Perhaps this should be pushed so that 'pure' software patents are
explicitly disallowed - including trivial additions to software systems.

I guess what I'm suggesting is a two-phase response. Response 1 being, 
"okay, you say X, what are you going to do to ensure that this is 
absolutely encoded? What will you do to ensure generic patenting is 
impossible, and how can you ensure the level of novelty is sufficiently
high?". Basically, getting them to map out what they currently think is 
required. And phase 2 being, "I think your current plans have holes 
here, here and there, and this is why I think you need to go further" -
I think their equation between software and other technical fields is
based on misunderstanding of software - I believe it to be a field of
mathematics, not technology. Their arguments about TRIPS et al. are 
similarly wholly, and probably not defendable.

Cheers,

Alex.

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