From: sf@fermigier.com
To: lwn@lwn.net
Subject: Eurolinux Open Letter to the European Commission Concerning Software 
Date: Tue, 13 Mar 2001 08:49:23 +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