Thanks to Barry O'Donovan for getting McGuinness interested in meeting us.
I met her yesterday morning. On this directive, her only meetings were two previous meetings with pro-patent types. She told me she didn't want to take a position until she'd heard all the sides.
Being a new MEP, she didn't have the benefit of the 2003 lobbying, so we discussed the basics as well as the current situation. I think by the end she was seeing the sense in our side (or the nonsense in our opponents side).
She found it difficult to understand the current situation whereby software patents are not valid but 30,000 have been granted. I did my best to explain that they were speculative patents, 75% owned by the USA and Japan.
She had some doubt about the position of the anti-swpat campaign's position after discussions with Brian Crowley. This doubt wasn't about whether we were right or wrong, but about whether we were misguided about the severity of the current situation (Crowley was pro-B-item, saying that the directive can be fixed in the second reading), and about the badness of the Council's text (Crowley said that 50% of the first reading amendments were kept, so our position wasn't discarded).
(Since Crowley is (a substitute) on the JURI committee, he may be seen as an expert on this directive, so he may be having an unexpected influence on the other MEPs. I'll have to try to meet him again.)
She didn't like the issue being painted as big business Vs. small, but without using those words, I told her that the situation is just like that.
I left with her a copy of three of our letters, but it struck me that really we should have a comprehensive positional paper on the directive. I will make a skeleton draft this evening and will circulate it.
She mentioned that she'd heard TRIPS requires software patents. Here's the follow up mail I sent her (I've trimmed the "thanks for the meeting", here's our contact details, etc bits)
One quick follow up point I'd like to make is about TRIPS. Article 10 says:
"Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention."
As literary works, not as a field of technology - therefore not covered by Article 27 which says:
"patents shall be available for any inventions in all field of technology, provided they are capable [...] of industrial application"
Article 10 could even be interpreted as saying that allowing software patents would actually violate TRIPS - because patents deny authors of the copyrights granted to them by the Berne Convention (my copyrights are useless if someone else makes a patent claim to my work). But we don't have to go that far to see that it is false to claim that TRIPS requires software patents.
Hi,
First off, it's great that meetings like this are taking place. Thanks to Ciaran and Barry.
On Thu, 2005-03-31 at 14:13 +0100, Ciaran O'Riordan wrote:
She found it difficult to understand the current situation whereby software patents are not valid but 30,000 have been granted. I did my best to explain that they were speculative patents, 75% owned by the USA and Japan.
Are you sure this is the case? As I understand it these patents have actually been granted and would be considered valid in law unless they were overturned.
She didn't like the issue being painted as big business Vs. small, but without using those words, I told her that the situation is just like that.
That's interesting. What was her objection to this?
One quick follow up point I'd like to make is about TRIPS. Article 10 says:
"Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention."
As literary works, not as a field of technology - therefore not covered by Article 27 which says:
"patents shall be available for any inventions in all field of technology, provided they are capable [...] of industrial application"
Article 10 could even be interpreted as saying that allowing software patents would actually violate TRIPS - because patents deny authors of the copyrights granted to them by the Berne Convention (my copyrights are useless if someone else makes a patent claim to my work). But we don't have to go that far to see that it is false to claim that TRIPS requires software patents.
I think this is a pretty tenuous argument. As much as I detest TRIPS I don't think it clearly excludes computer programs from patentability. Article 27 section 1 also says "patents shall be available and patent rights enjoyable without discrimination as to [...] the field of technology" and there are many reasonable people who would consider software a field of technology.
Also, I don't think the conflict between copyrights and patents that you mention is really a strong argument. The copyright you hold on your program doesn't grant you immunity from patent infringement.
Article 7 says "The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations." This gives us some hope that arguments about the detrimental social and technological effects of software patents may have some impact.
Kind regards,
David
David O'Callaghan wrote:
Also, I don't think the conflict between copyrights and patents that you mention is really a strong argument. The copyright you hold on your program doesn't grant you immunity from patent infringement.
You're not susceptible to the charge of patent infringement for any other kind of copyrightable, expressive work. Neither are you susceptible for describing a patent, either in poetry or code.
It is important to emphasize the difference in the kinds of things covered by copyright and patent, and specifically to convey that code is an expression (therefore appropriate for copyright) of an algorithm (therefore inappropriate for patent).
There is a real difference between the domains of copyright and patent in that copyright covers expression and patent has not ever before and should not now. All that's needed is to make clear that software is an expression.
When you keep that point clear, that code is an expression of pure abstraction (even if it's in a FPGA or any other "hard" form), you can maintain a clear distinction between code as the same thing as a written representation in any other language, and fields of technology as such. In short, any kind of technology that serves as instructions provided to a generic logic processor, is the same as words written on a page, or any copyrightable expressive work fixed in a medium. Fields of technology can then be distinguished as other kinds of processes that aren't being used basically as a recording of abstract logical and mathematical operations.
Article 7 says "The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations." This gives us some hope that arguments about the detrimental social and technological effects of software patents may have some impact.
Good point.
Seth
Kind regards,
David
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David O'Callaghan david.ocallaghan@cs.tcd.ie writes:
On Thu, 2005-03-31 at 14:13 +0100, Ciaran O'Riordan wrote:
She found it difficult to understand the current situation where by software patents are not valid but 30,000 have been granted.
As I understand it these patents have actually been granted and would be considered valid in law unless they were overturned.
Those patents have been granted, but that only means a civil servant (not a law maker) following the EPO's application guidelines (not a legal document), has signed off saying there's a good chance this patent is enforceable.
Whether it is or not, and whether it can be infringed by writing software (otherwise it would be valid by toothless), is for a judge to decide.
IMO, Art 52 of the EPC clearly excludes software ideas from patentability.
Why have the EPO been granting these patents? Maybe they caved to pressure from patent wantees? (they make money on every patent granted, not rejected) Maybe they want their area of control to be as large as possible?
She didn't like the issue being painted as big business Vs. small
What was her objection to this?
It's too easy to paint things that way and then ask politicians to support the small guy - when doing the right thing is the politicians real job.
Article 10 could even be interpreted as saying that allowing software patents would actually violate TRIPS
I think this is a pretty tenuous argument. As much as I detest TRIPS I don't think it clearly excludes computer programs from patentability.
I agree. (the key word above being "clearly") Which is why I ended:
But we don't have to go that far to see that it is false to claim that TRIPS requires software patents.
I also think TRIPS doesn't clearly require software patents.