That anti-patent pamphlet I mentioned

Niall Douglas s_fsfeurope at
Tue Dec 10 09:50:58 UTC 2002

On 9 Dec 2002 at 20:49, Arnoud Galactus Engelfriet wrote:

> You are correct. But I think it is wrong to say the EPO is
> acting illegally, since they are within the boundaries of
> the EPC to do what they do. Acting against the spirit of a
> treaty is not illegal. 

For some reason, the legal profession has always eschewed integration 
of ethics, quite probably because half their work in side-stepping 
the intent of laws would evaporate. However, in my opinion all law 
should be subject not to its letter, but to its spirit and if we 
could change that, the world would be a much better place for it.

> You should go to the legislature to get a bad law changed. A
> court can only uphold the law, and it is wrong for a court to
> go against the law even if the law is wrong. 

Under continental law yes. Under English law, magna carta although 
almost gone still theoretically permits a jury to find not guilty if 
they a think a law morally or ethically wrong.

> > "Early in 2003, Software Patents are likely to become enforced
> > within the EU, despite being banned since 1973 and those issuing
> > from the mid-1980s being of dubiious enforceability."
> There is no EU patent law right now, and I thought that in
> this sentence you suggested there was. Maybe you should make
> the distinction more clear. The interpretation of the law
> as devised by the BoA of the EPO is now being forced upon
> the EU member states, even though the BoA is no law-making
> institute. Furthermore, not all EU member states are EPC
> contracting states. How's that for democracy?
> Ehm, so you were not wrong is what I wanted to say. :) It's
> just a very common mistake to make. So please take the above
> quote from me as a tip, not a correction. :-)

Regarding this, I've changed the opening paragraph in my article to 

Early in 2003, Software Patents are likely to become enforced within 
the EU, despite computer software being specifically exempted since 
1973 and repeated revisions of the guidelines since reinforcing this 
notion - unfortunately, the proposed reforms will introduce legal 
loopholes big enough to permit effective work-arounds.  

How's this? Is it accurate?

> I think however that most large companies take the view that
> software is nothing special. Why is an MPEG patent valid against
> a decoder board in a DVD player, but not against a software player
> which does exactly the same thing? And what if I put that software
> player on a flash ROM on that decoder board? And that's actually also
> the reason why you will not get much public support from large
> companies. If "software patents" become invalid, then it becomes much
> easier to rip off real inventions simply by doing parts in software.

I still don't understand why there ever was a concept of "MPEG 
patent". Sure, a "MPEG implementation patent" but not of MPEG itself -
 which, as I've discussed in here at length, is a set of algorithms 
and therefore should be totally free in order to encourage 
competition to produce the best implementation.

I appreciate all that EuroLinux and the FFII have done, but could it 
not be argued a better approach is to say why the hell was this 
stupidity with hardware allowed in the first place? I can't see MPEG 
patents benefiting society at all eg; MPEG2 players for Linux and 
even MPEG2 players for Windows.

We're about to run into the same problems with MPEG4 now it's been 
charged for. It seems to me a very stupid idea which discourages 
interoperability and improvements in technology. In other words, it's 
anti-quality and anti-usefulness.

> > Most software patents, though are not such a cash cow. 
> Most patents in general are not cash cows. 

Except for IBM, the pharmaceutical companies and a few others.


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