From:	 sf@fermigier.com
To:	 lwn@lwn.net
Subject: Software Patents: France Accuses EC of Misleading e.Europe
Date:	 Tue,  5 Mar 2002 08:16:52 +0100 (CET)


         Software Patents: France Accuses EC of Misleading e.Europe

     French Government Requires Proper Assessement of the Economic Impact
                               of Software Patents

   EuroLinux Alliance <petition.EuroLinux.org>

   For immediate Release

   Paris, Munich, Copenhaguen - 2002-03-04 - The French Governement sent
   on Friday, March 1st a vigourous letter to the European Commission in
   which it complains about the proposed directive on so-called "computer
   implemented inventions".

   According to the French Governement, the proposed directive on
   computer implemented inventions "would open the realm of patentability
   to all software and eventually business methods" because the
   "directive claims in the explanatory memorandum that all programs when
   run in a computer are by definition technical".

   Also, "The French Government considers that the proposed directive
   does not provide adequate answers on the economic, scientific and
   cultural impact of the software economy as well on the requirement of
   promoting innovation which was defined as a priority in the e.Europe
   action plan."

   The letter concludes that "The French Governement intends to block any
   project which consequences would be negative in Europe in the field of
   innovation, interoperability and open source / free software, as well
   as on all actors (publishers, integrators, users), and in particular
   on SMEs."

   Anne Østergaard, spokesperson for EuroLinux and member of SSLUG in
   Denmark, considers that "obviously, the French Government did read the
   proposed directive and does understand that this text solves nothing
   in terms of interoperability, innovation, competition, SMEs and open
   source / software. They are perfectly aware that the proposed
   directive extends the patent system in Europe to all software and
   business methods, just as it is the case in the United-States, and
   they are aware of the negative economic consequences of this
   extension. They also fully understand that the European Commission is
   trying to mislead e.Europe by hiding economic studies that do not
   support their views or even by simply lying on the consequences of the
   proposed text on the patentability of business methods or on
   interoperability."

   EuroLinux welcomes the French move. EuroLinux wishes more European
   Governement to take similar positions and require the European
   Commission to achieve a proper economic impact assessement, to take
   into consideration budget issues, take into consideration national
   official economic reports (France, Germany, UK, Netherland, etc.) and
   to work for the European Citizens rather than for the BSA.

 Rough English Translation of the Letter Sent by the French Government

    Dear Sir,

    During the Council of Internal Market on March 1st 2002, the European
    Commission will introduce its proposal of directive on computer
    implemented inventions. Because the impact of software patentability
    goes far beyond mere technical issues, I must explain hereby the
    position of French government.

    Rules as they are defined by the European Patent Convention (EPC) have
    excluded programmes for computers "as such" from the list of patentable
    inventions. However, the practice of the European Patent Office (EPO)
    has slightly evolved in the last few years and has granted many patents
    in the field of software. Thanks to an initiative lead by France
    together with other EU nations, the Diplomatic Conference in charge of
    the revision of the EPC, which was held in November 2000 in Munich,
    decided not to change the provisions of the Convention in this field,
    and proposed that a clear European Community position should be
    defined, based on a detailed analysis of its economical, technical and
    juridical consequences.

    The European Commission lauched various studies and a consultation in
    the last quarter of 2000. However, the proposed directive does not
    highlight the risks of a juridical validation of the EPC practice in
    the Members States of the Union in comparison with its eventual
    advantages. Various reports and studies launched by Member States have
    in fact drawn very cautious conclusions regarding such an evolution.

    In this context, it appears that the proposed directive does not
    provide any kind of precision on the limits and requirements for
    patentability but, on the countrary, claims in the explanatory
    memorandum that "all programs when run in a computer are by definition
    technical" (p. 7). This would open the realm of patentability to all
    software and eventually business methods. However, it clearly appeared
    both in France as well as at the EPO that such an extension would be
    rejected by the vast majority.

    Also, the provisions for future revisions defined at Article 8 do not
    allow to assess the impact of the evolution of the juridical protection
    of inventions implemented by computer programmes on competition and
    innovation before 3 years after the adoption of the text. France
    considers that it is a requirement before any discussion within the
    Council to provide a review of the protection of inventions implemented
    by computer programmes resulting from the EPO practice and in the
    Member States.

    The French Government considers that the proposed directive does not
    provide adequate answers on the economic, scientific and cultural
    impact of the software economy as well on the requirement of promoting
    innovation which was defined as a priority in the "e.Europe" action
    plan.

    The French Governement intends to block any project which consequences
    would be negative in Europe in the field of innovation,
    interoperability and open source / free software, as well as on all
    actors (publishers, integrators, users), and in particular on SMEs.

    Considering this, the French Government is not in favour of the
    proposed directive, which does not seem to be able to provide a clear
    and adequate position on this major topic in terms of innovation for
    now and for the future.

    Yours Sincerely,

    C Pierret

References

   [0] Original Press Release of the French Government
   http://www.telecom.gouv.fr/dp/brevetlogiciel.pdf
   or
   http://www.industrie.gouv.fr/cgi-bin/industrie/frame626.pl?bandeau=/infopres/bi_info.htm&gauche=/infopres/comm/li_comm.htm&droite=/cgi-bin/industrie/sommaire/comm/comm.cgi?COM_ID=1562|_Action=200

   [1] FFII Analysis of the Directive -
   http://swpat.ffii.org/vreji/papri/eubsa-swpat0202/

   [2] European Software Patent Horror Gallery -
   http://swpat.ffii.org/vreji/pikta/mupli/index.en.html

   [3] What is behind the recent surge in patenting? Samuel Kortum, Josh
   Lerner. Research Policy 28. 1999. Elesevier

   [4] Abstraction oriented property of software and its relation to
   patentability. Tetsuo Tamai. Information and Software Technology.
   1998. Elsevier.

   [5] Juridical Coup at the European Patent Office -
   http://petition.eurolinux.org/pr/pr14.html

   [6] Software Patentability with Compensatory Regulation: a Cost
   Evaluation. Jean Paul Smets and Hartmut Pilch. Upgrade February 2002
   http://swpat.ffii.org/stidi/pleji/
   http://www.upgrade-cepis.org/issues/2001/6/up2-6Smets.pdf

   [7] Fraunhofer Study about the Economic Effects of Software Patents.
   Micro and Macroeconomic Implications of the Patentability of Software
   Innovations. German Federal Ministry Economics and Technology.
   November 2001.
   http://www.bmwi.de/Homepage/Politikfelder/Technologiepolitik/Technologiepolitik.jsp#softwarepatentstudie
   http://www.bmwi.de/Homepage/download/technologie/Softwarepatentstudie_E.pdf

   [8] Stimulating competition and innovation in the information society.
   Conseil Général des Mines. September 2000. -
   http://www.pro-innovation.org

   [9] Collusion Discovered between BSA and European Commission -
   http://petition.eurolinux.org/pr/pr18.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, Linux and Open Source
   Software. Companies, members or supporters of EuroLinux develop or
   sell software under free, semi-free and non-free licenses for
   operating systems such as Linux, MacOS or Windows.

   The EuroLinux Alliance launched on 2000-06-15 an electronic petition
   to protect software innovation in Europe. The EuroLinux petition has
   received so far massive support from more than 100.000 European
   citizens, 2000 corporate managers and 300 companies.

   Press Contacts

   France & Europe: Jean-Paul Smets <jp@smets.com> +33-6 62 05 76 14
   Germany & Europe: Hartmut Pilch <phm@ffii.org> +49-89 127 89 608
   Denmark and Northern Europe: Anne Østergaard <aoe@sslug.dk>
   Belgium: Nicolas Pettiaux <nicolas.pettiaux@linuxbe.org>
   Netherlands: Luuk van Dijk <lvd@mndmttr.nl>

   Permanent URL for this PR

   http://petition.EuroLinux.org/pr/pr19.html

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