Blessed are the Geeks, for they shall internet the earth

Concerns About European Patents 
Ted Doyle

This follows perhaps too closely on the heels of my last missive, but today is important. Today was a day of protest against the idea that Europe should be able to patent software.

The European parliament, for one reason or another, agreed. And so a proposed legislation that may have allowed large corporations to block future analogs of Apache, PHP, Linux and other highly desirable, free and progressive software from the market was shelved ... for the moment.

The woman most identified with this legislation, Ms Adele McCarthy, is a Member of the European Parliament from the north of England. She is, she says, the "rapporteur" for the proposed legislation  (I think that is, in the feudal flavor of French based EU protocols, a person who champions some cause in the Courts of the King . . . but then I am not a specialist in such matters of continental tradition. They are gotten from civil, or later Roman notions of representative procedure, and are quite unlike our English traditions which appeal to an older, more Grecian view).

Ms McCarthy has an obvious desire to do her best for those companies which hail from her part of the world. An industrial "black spot" she calls it; a place we can presume, where nothing much is happening in England's blasted northern industrial heath.

She argues cogently for her corner . . . her basic premise being that patents for software are being issued already by the European Patents Office, and yet countries in the EU have no legal right to review these patents, nor is there a consistent overview process for the granting of patents in this way. She says the legislation she "rapports" is an attempt to make this process more answerable, and to avoid a slide into the US system, where, it is said, large corporations can corner an invention and prevent its distribution.

She says that recently, a small software company in the north of England was able to negotiate a license agreement with a major US player for their voice recognition software . .  she says this would not have been possible without European patents. So clearly, we already have effective European patent processes which protect small European companies in their dealings with US predators, so why do we need more?

According to Ms McCarthy we need more because "in the US and Japan patents have been granted for what is essentially pure software. Some European Patents Office and court rulings indicate that Europe may be drifting towards extending the scope of patentability to inventions which traditionally have not been patentable, as well as pure business methods."

It is clear, she says, that Europe needs a uniform legal approach which draws the line between what can  and cannot be patented, and prevents "the drift towards the patentability of software per se".

Now it has been a long life, and I have been scribbling about it since the 1960s.I have a fair memory for transgressions I have committed in that time: most of them.

Today, however, to my surprise I discovered I was about to commit one I hadn't enjoyed before; I have been in communication with Ms McCarthy, in an effort to see what exactly she was up to. I wanted to know whether in fact it constituted good, if misbegotten faith. I have now her reasoning and in good faith it may reside, but it is beyond me to explain what I think about it.

More honestly, I find a great soul weariness creeping over me, for I suspect I need to explain it, and this frightens me.

I reproduce for you below the correspondence. My transgression is that I did not reveal to Ms McCarthy that I would publish this. In thirty odd, nearly forty, years I have never done such a thing ,.. it is an important day, And this is an important issue.

So. The correspondence:

Mine to Ms McCarthy, mid-afternoon, re proposed legislation:

"Have mailed your easynet address asking to see some logic behind these  apparently destructive proposals.

 Am repeating to this address not as a discourtesy, but because I cannot  believe what is being proposed and need reassurance.

 My group of companies is being asked to join actions against you and  these proposals, and I need to know why.

 Pls explain, comrade

 Ted Doyle"

 Her response, late afternoon:

 "Dear Ted Doyle,

 Thank you for your correspondence concerning the draft directive on the patentability of computer-implemented inventions.


 The European Parliament's Legal Affairs Committee has voted on my report on the directive and there will be continuing debate and further democratic scrutiny before the directive becomes law.
 
 At this early stage of legislative process, it is nonetheless important to establish the facts about what the draft EU directive and what I, as the Parliament's rapporteur, are aiming to achieve in the amendments tabled to the Commission proposal.


 It has been suggested that the Parliament's report will for the first time allow the patentability of computer-implemented inventions. This is simply not true. The patenting of computer-implemented inventions is not a new henomenon. Patents involving the use of software have been applied for and granted since the earliest days of the European Patent Office (EPO). Out of over 110,000 applications received at the EPO in 2001, 16,000 will have dealt with inventions in computer-implemented technologies. Indeed, even without an EU directive, these patents will continue to be filed, not only to the EPO but also to national patent offices.


 As you will be aware, in the US and increasingly in Japan, patents have been granted for what is essentially pure software. Some EPO and national court rulings indicate that Europe may be drifting towards extending the scope of patentability to inventions which would traditionally have not been patentable, as well as pure business methods. It is clear that Europe needs a uniform legal approach which draws a line between what can and cannot be patented, and prevents the drift towards the patentability of software per se.

 
 My intention is clear in the amendments tabled and in a new Article 4 in
 the text, to preclude; the patentability of software as such; the patentability of business methods; algorithms; and mathematical methods. Article 4 clearly states that in order to be patentable, a computer-implemented invention must be susceptible to industrial applications, be new, and involve an inventive step. Moreover I have added a requirement for a technical contribution in order to ensure that the mere use of a computer does not lead to a patent being granted.


 Furthermore, the amended directive contains new provisions on decompilation that will assist software developers. While it is not possible to comment on whether any patent application would be excluded from the directive, the directive, as amended, would not permit the patentability of Amazon's 'one-click' method. As far as software itself is concerned, it will not be possible to patent a software product. Software itself will continue to be able to be protected by copyright.


 With an EU directive, legislators will have scrutiny over the EPO and national court's decisions. With, in addition, the possibility of having a definitive ruling from the European Court in Luxembourg, thus ensuring a restrictive interpretation of the EU directive and a greater degree of legal certainty in the field of patentability of computer-implemented inventions.


 Some concerns have been raised that the directive may have an adverse effect on the development of open source software and small software developers. I support the development of open source software and welcome the fact that the major open-source companies are recording a 50% growth in world-wide shipment of its products.


 In the amended proposal, I have imposed a requirement on the Commission to monitor the impact of the directive, in particular its effect on small and medium sized enterprises, and to look at any potential difficulties in respect of the relationship between patent protection of computer-implemented inventions and copyright protection.


 Many small companies have given their support to this directive, which will give them more legal certainty as it offers the possibility of protection for their R&D investment, and so assists in spin-off creation and technology transfer and generating new funds for new investments.


 Indeed recently, a small ten-person company in an economic black-spot in the UK granted a licence to a US multinational for its voice recognition software patents. Without European patent protection in this field, the small company could have found itself in the perverse situation whereby its R&D efforts and investment would simply have been taken by a large multinational company, who, with its team of patent lawyers, would have filed a patent on this invention. The EU company could have been faced subsequently with patent infringement proceedings.


 Some lobbyists would like us to believe that having no patents is an option - it is not. No patents would put EU software developers at a severe disadvantage in the global market place, and would hand over the monopoly on patents to multinational companies.


 The work I have done is an honest attempt to approach this matter objectively, and to produce balanced legislation, taking into account the needs and interests of all sectors of the software development industry and small businesses in Europe. No doubt there will be more debate and refinements to the legislation before a final text is agreed under the EU legislation process.


 At a time when many of our traditional industries are migrating to Asia and when Europe needs increasingly to rely on its inventiveness to reap rewards, it is important to have the option of the revenue secured by patents and the licensing out of computer-implemented technologies.


 Software development is a major European industry. In 1998 alone the value of the EU software market was $39 billion. Most of this will be protected by copyright, but genuine computer implemented inventions must have the possibility, for the future of competitiveness of our industry, to have patent protection.




 Yours sincerely

 Arlene McCarthy MEP"



Here is my response to that, early evening:

 "Thank you for what is clearly a thoughtful reply.

 I understand the parliament's intent is consistent with its views on protection of competition and the levelling of  opportunities between competing organisations.

 Let me cut to the chase. In the sixth paragraph you state:

 My intention is clear in the amendments tabled and in a new Article 4 in the text, to preclude; the patentability of software as such; the patentability of business methods; algorithms; and mathematical methods. Article 4 clearly states that in order to be patentable, a computer-implemented invention must be susceptible to industrial applications, be new, and involve an inventive step. Moreover I have added a requirement for a technical contribution in order to ensure that the mere use of a computer does not lead to a patent being granted.

 And in the ninth paragraph you state:

 Some concerns have been raised that the directive may have an adverse effect on the development of open source software and small software developers. I support the development of open source software and welcome the fact that the major open-source companies are recording a 50% growth in world-wide shipment of its products.

 You then say that "Some lobbyists suggest no patents would be better" . . . or words to that effect.

 I don't intend debate on this. We are both too busy.

 Here are the points, as I understand them:

 1. You CANNOT patent a core fact of computing science (algorithmic methods etcetera).

 2. You CAN patent an implementation, which you developed based on core concepts of computer science.

 So, therefore a Linux could be invented again by a European, but once the so-called "owners" of Unix had lodged their patents it could never be distributed.

 Bill Gates and his analogues must send up prayers to heaven in gratitude for this legislation, every night.

 It is crucial to preserve the health of the non-corporate development of the IT industry, for that is what has driven every major advance since the beginning, and that health is best exampled by the open software movement.

 So may I suggest:

 Any software invention produced under and covered by the open software license be exempt under the legislation from legal attack by a patent holder.

 Can you assure me that would be the case? Oh, and by the way, I cannot for the life of me understand what your sixth paragraph actually means.

 I have no love of a corporatised world, comrade, and as I near my sixth decade, most of them in computing, I slowly realise that Lev was not all wrong, but the Georgian was all powerful.

 It deserves study.

 Still, now, in this strangely unprincipled world, I believe the young, and their open software anarchy hold out hope to us all. Would you, in your desire to encourage small software companies unwittingly play the Ford or Rockefeller hand against them?

 I look forward to your reply

 Ted Doyle"


If you are puzzled by the seemingly socialist salutations, don't be. In my early life I was one, a real one. And I earned the right to address members of formally  socialist organisations, like the British labor party, as "comrade".

If you are unaware that there is anything untoward about Ms McCarthy's second paragraph in the correspondence above, following her proposals being voted down by the parliament;to wit:

"The European Parliament's Legal Affairs Committee has voted on my report on the directive and there will be continuing debate and further democratic scrutiny before the directive becomes law"

. . . don't feel like Robinson Crusoe.

I suspect she doesn't see anything wrong with it either, and that is the reason we are all doomed.

For those who do understand "four legs good, two legs bad"... prepare to defend yourselves, gentlemen.


Ted Doyle,

London

 




 


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