That anti-patent pamphlet I mentioned

Arnoud Galactus Engelfriet galactus at
Tue Dec 10 10:49:29 UTC 2002

Niall Douglas wrote:
> 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.

Fine with me. But again, currently it is not illegal to do something
that apparently violates the spirit of a law if you stay within the
letter of the law. If you want to call violating the spirit of a law
an illegal act, go ahead, but you will create much confusion because
the legal people and politicians you're trying to reach will be
looking for violations of the letter of the law.

> Regarding this, I've changed the opening paragraph in my article to 
> read:
> 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 would say: "despite the fact that the European Patent Convention
explicitly excludes computer software as such since 1973 and the 2000
EPC Diplomatic Conference made it clear the EPC Contracting States
did not want to change this. Unfortunately, the proposed Directive
will effectively render this provision null and void."

The latest revision of the EPO Guidelines make it clear that
according to the EPO computer software is patentable, so I don't
think it's a very strong argument to say that the guidelines used to
support your position. Furthermore, the Guidelines are not binding to
anyone except EPO Examiners during prosecution of an application.

I get the feeling that what you are trying to say is that doing
something that goes against the original intent of the EPC is
necessarily an illegal activity. This seems a bit strange to me, as
lawmakers have the ability to override previous laws, don't they? If
the EC now wants to override the provisions of the EPC, that may be a
bad policy, but it's not a loophole. It's simply a new law.

> > 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 -

To me, "MPEG patent" is shorthand for "patent on a particular
technical aspect of an implementation of the MPEG standard".
And no, it doesn't matter whether that implementation involves
software, hardware or a combination of both.

>  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.

The patents do not cover the standard itself, but only
implementations of the standard. You can copy the standard as much as
you want (subject to copyright restrictions of course) and distribute
information in the standard to everyone. But as soon as you start
implementing the standard, your implementation will infringe on some
patents. And for particular implementations there might also be
patents which you can work around by choosing a different

> 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.

I don't understand this. Are you saying that patents on hardware
implementations of MPEG should also not be permitted?

> 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.

The counter argument would be that without the prospect of using
patents to get revenue from MPEG 4 implementers, the MPEG 4 drafters
would not have made the investments to develop the standard in the
first place. My company certainly wouldn't have.

> > > 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.

Even to IBM most patents are not a cash cow. A small number of their
patents bring in a lot of money, but most of them don't bring in any
money. You may be right about pharmaceutical patents, but as most
pharmaceutical firms have a much smaller number of patents than most
electronics firms this seems almost inevitable.

Kind regards,

Arnoud Engelfriet

Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies:

More information about the Discussion mailing list