Responses to the European Commission's patent consultation should be submitted by March 30th. Below is a draft made from notes I made while reading the questionnaire which I have cleaned up a bit and will clean some more and propose as a response for FSFE.
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FFII have a website of information about this: http://consultation.ffii.org
I can't find FFII's response there, but there is plenty of information there and their President has posted his own response: http://consultation.ffii.org/Example_Answers
Florian Mueller has information here: http://www.no-lobbyists-as-such.com/florian-mueller-blog/position-paper/
Including his repsonse: http://www.no-lobbyists-as-such.com/PATSTRATpositionpaper.pdf
and a 3 page information document: http://www.no-lobbyists-as-such.com/PATSTRATquickfacts.pdf
If you do not have time to draft a response, you could support either of those statements (if you agree with either of them), and additionally add some clarifications / comments of your own. You could also choose to support what FSFE publishes.
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Draft response to the questionnaire "On the patent system in Europe".
Introduction
A proposal was made, in 2002, for a directive which would have allowed patents on software ideas. This was opposed by Free Software users, consumer groups, most of European industry (SMEs), and more citizens than usually take part in the EU legislative process. It was also eventually rejected by the European Parliament in July 2005.
The conclusions which lead to the Lisbon agenda were made before these events. The patent system(s) of Europe may have seemed ready for the Community Patent in 2000. Much has come to light, and much has been learned since.
We welcome the European Commission's decision to defer the Community Patent "until the time and conditions are ripe for that effort". The current time and conditions are not right for the Community Patent, but the problems are fixable. FSFE's specific concerned about patents is in the field of software, and we look forward to assisting the fixing of that problem.
FSFE would also like to note that some stake holders with limited resources for analysis and cross-refercing issues such as this have opted not to respond to this question. We therefore expect that stake-holders with those with lower resources per-stake-holder will be under represented by the responses to this questionnaire.
Section 1
We agree, as the questionnaire states, that "the patent system ... should be used ... for the benefit of all society". Thus, like all law, it should be applied where it benefits all society, and excluded from where it would cause overall harm to society.
Where the questionnaire speaks of "breathing-space" for patent owners, FSFE would like to note that non-industrial activities of citizens must not be restricted by being designated as the exclusive "breathing-space" of a patent holder. That is to say that democratised acts, such as software development and use, and the publication of information, which society is able to participate in, should not become prohibited for the purpose of giving "breathing-space" to patent holders.
FSFE would like to note that we do not regard the list of four patent system features as being given in order of importance.
1.1 Do you agree that these are the basic features required of the patent system?
On the the four proposed desireable features for a patent system, FSFE would like to make one modification, one clarification, and one addition.
The modification is to the first point. FSFE does not believe that overall objectives of the patent system should be compromised by (or "balanced with") "the interests of the right holders". The existence of rights holders is an artificial measure which occurs to serve the goal of the patent system. Giving power of rule-drafting to a group which is created by the rules could only yield an outcome with a clear conflict of interest.
The only balancing to be done is balancing the harm/burden to society with the benefit to society.
The clarification is that to make "clear substantive rules", the 21 amendments which were submitted by members of all EP parties should be used. We believe that the European Patent Convention is clear, however, the actions of the European Patent Office and the expressed will of the citizens of Europe show that it should be made even clearer by the 21 amendments being incorporated.
The addition is mentioned in our answer to 1.2
1.2 Are there other features that you consider important?
The addition is that patent law must advance society rather than inhibit it. It should enable people to further themselves, individually, or as a business. This should go without saying, but patent law proposals such as the now-rejected "software patents" directive, shows that this must be explicitly kept in mind.
1.3 How can the Community better take into account the broader public interest
To better take account of broader public interest, developers of European patent policy should look at the issues from the perspective of all stake holders.
It must be kept in mind that some fields of endeavour are the exclusive domain of large companies. The manufacture of cars and pharmaceuticals are two examples. For these domains, medium-to-large financial, bureaucratic, and legal restrictions can be justified because those who bear the burden can be expected to have the necessary financial and legal resources.
In stark contrast, in the field of software, even small financial, bureaucratic, or legal restrictions would cripple most developers of software because most developers of software are individuals, small companies, medium sized companies, or companies whose core business is not software development.
Maximum transparency, and the involvement of the directly elected European Parliament, is also requested.
Section 2
2.1 By comparison with the common political approach, are there any alternative or additional features that you believe an effective Community patent system should offer?
It is imperative that the seperation of power, a foundation of European democracy, is maintained - and improved when possible. As such, one issue that FSFE sees, is that Judges on any such "Community Patent Court" (the Judiciary) should not come from the Execuative or Legislative bodies of the patents field. The mixing of legislative power into the European Patent Organisation (and executive body) is already being seen by some as the root of problems in European patent law.
FSFE is also concerned about the transfer of patent-granting power to the European Patent Office (EPO). The EPO has granted many patents contra to the European Patent Convention, and the non-legallity of those patents has been confirmed by rejection of them in national courts. With this history, the EPO must clearly be given a more limited, supervised, and accountable role in the patent process.
Section 3
3.1 What advantages and disadvantages do you think that pan-European litigation arrangements as set out in the draft EPLA would have for those who use and are affected by patents?
The advantages of such arrangements can only really be judged by the content and substance. An agreement which benefits society by not creating software patents would be beneficial because it would avoid imposing industrial restrictions on those who cannot bear such restrictions,
We feel, however, that arrangements made within the EU legsilative process are more likely to produce such results.
The EU's legislative process has enough problems with lack of citizen awareness and participation. Allowing the circumvention of this process for a process further removed from the people is a anti-democratic direction which should be avoided. Instead, democratic processes should be followed and ways should be sought to lower the barrier of entry for citizens and all stake holders to participate in the legislative process.
3.2 Given the possible coexistence of three patent systems in Europe (the national, the Community and the European patent), what in your view would be the ideal patent litigation scheme in Europe?
(No comment.)
Section 4
4.1 What aspects of patent law do you feel give rise to barriers to free movement or distortion of competition because of differences in law or its application in practice between Member States?
The greatest barrier to free movement is the fear that can exist, among bodies who do not have the spare resources for defending patent litigation threats, of appearing on the radar of a patent holder.
The greatest distortion of competition is the use of industrial law against civilians and businesses who are not in the same industry as the patent holder.
Harmonisation could be beneficial if it included clarifications which could prevent the mis-reading of the EPC. To do this, the 21 amendments proposed by many MEPs before the July 2005 vote, should be incorporated.
4.2 To what extent is your business affected by such differences?
My employer is a user of software, and although FSFE is not in the business of developing software for profit, we nonetheless develop a lot of software because that is the normal way to use computers.
We have developed a website with a system for automatically updating new sections, we have developed infrastructure for sending and archiving email, and we have developed software for secure communication via encryption and signing.
Software patents could prevent us from creating such IT infrastructures, or from distributing the software we develop.
4.3 What are your views on the value-added and feasibility of the different options (1) - (3) outlined above?
Suggestion #1: subject matter is the core issue and must be more clearly addressed.
Suggestion #2: lacks defintion and cannot be commented on.
Suggestion #3: is the most promlematic of all. The conflict of intereste inherent in patent offices which are funded by accepting patents would be greatly amplified as offices could compete. Adding a validation step involving the European Patent Office is unlikely to have any effect as the European Patent Office has a proven history of expansionism/inflationism of patent law with regard to subject matter and of lowering the standard for other criteria.
4.4 Are there any alternative proposals that the Commission might consider?
Alternatives should begin with the 21 amendments which were proposed by members of all the EP parties for the July 2005 vote. From there, a system being developed must contain seperation of power, transparency, and must be accountable when it strays from it's mandate.
5.1 How important is the patent system in Europe compared to other areas of legislation affecting your business?
The patent system, if stretched to cover software, would pose great danger to software developers, harm to Europes software infrastructure, and distortion of competition law. Saving Europe from this harm is a high importance to FSFE.
Using the patent system is a non-priority for us, and would get an importance of 1. Participating in the administration and monitoring of the patent system is of vital importance to us because changes in patent law propose a real and serious threat, and would get an importance of 10.
5.2 Compared to the other areas of intellectual property such as trade marks, designs, plant variety rights, copyright and related rights, how important is the patent system in Europe?
The question is ambiguous.
It could mean: "How important is Europe's patent system to Europe?"
On this, I would like to note that the US Federal Trade Commission, having reviewed the overall patent system in the USA, commented that the patent system would be better if it was more selective about what subject matter is covered, and it gave a wholly negative report on the outcome of the patenting of software and internet ideas.
It could also mean: "How important is the patent system in Europe to you?"
As mentioned in answer to question 5.1, using the patent system is not no importance (0), but preventing patent legislation from becoming harmful is a very high importance (10).
5.3 How important to you is the patent system in Europe compared to the patent system worldwide?
Patent legislation Europe is of great importance. Europe has the opportunity, starting with the 21 amendments, to introduce highly beneficial patent legislation and to become a leader of sensible patent policy. On this, the USA missed the boat.
5.4 If you are responding as an SME, how do you make use of patents now and how do you expect to use them in future? What problems have you encountered using the existing patent system?
I am not responding as an SME, but as a software developer and user I would like to comment that I have found the barriers to entry too great for me to be able to participate in the patent system.
Instead, I am used by the patent system. The patent system could make me a target for patent litigation and a potential market tool and even a potential revenue source for others.
5.5 Are there other issues than those in this paper you feel the Commission should address in relation to the patent system?
As mentioned in the preceding answers, the sensible exclusion of software ideas from patentable subject matter, the separation of powers which prevents distortion of law in democracies, the abandoning of the European Patent Organisation's case law and the implementation of an accountable system with proper checks and balances.
The costs, restrictions, and burdens of the patent system do not seem to be fully considered. It must be kept in mind that every patent is a regulation. Every patent is bureaucracy. Bureaucracy is sometimes needed, but it slows society and must be minimised.
Closing comments
In closing, we would also note that we are concerned about comments in the questionnaire which refer to "the field of intellectual property". The comments made here by FSFE are on patent law. The laws contained encompassed by the term "intellectual property" are so diverse and often unrelated that comments on that field as a whole must cover great misunderstandings or overgeneralisations.