Most recent full copy of Directive on patentability of computer implemented inventions

Niall Douglas s_fsfeurope2 at
Fri Aug 15 17:11:42 UTC 2003

On 14 Jan 2003 at 1:42, xdrudis at wrote:

> I've learnt not to believe everything a MEP says. I don't mean 
> they're wrong. I mean they often don't realise how wrong the 
> directive is. On the other hand, it is a bit of human nature:
> the MEP wants the less possible amount of work to do (it's
> not only laziness, it also gives more chances to "succeed"),
> and the constituent wants the MEP do as much work as necessary. 
> The problem is making them understand what they think that 
> incresases chances os succeeding is increasing chances of something
> which is no success at all.

As much as we may want a complete overhaul of the EU parliamentary 
system and indeed democracy, I think it's unproductive in this 
particular context.

I state once again that software patents will exist in some form. 
There is no point arguing that we're not mandated to, or that they 
can be averted. Being unrealistic is the single best way to bring 
down the worst possible form of software patent upon us.

Far better IMHO is to mitigate the negative effects of a done deal. 
That is what we should aim for.

> > Yes. However, I've considerably improved by background 
> > understanding 
> > of the theory of patents, how they work wrt classical economic
> > theory, and why under that same theory US-style patents have the
> > opposite effect.
> Don't believe every MEP has the same model, though. Anyway, 
> I think I was assuming your proposals were more concrete or 
> you had more familiarity with the directive than you had.
> My mistake. I understand you're spending quite a lot of time 
> in this, and of course reading the directive is your first
> prioritu, but after that, I'd be thankful if you could read
> and maybe references, since some of the arguments pro-swpat MEPs put
> forward are already discussed there.

Actually, the final directive which I've read through twice now is 
the last of my reading on the matter. I have read so many analyses 
and drafts of amendments of the directive that it's been good to read 
finally what the hell they've all been talking about.

The first thing which struck me is "why is this proposed legislation 
so vague?". Vague legislation is automatically bad legislation. If I 
had tried proposing a motion like that at student council at 
university, it would have been struck down immediately as 

> > I think everyone here can agree that book-style copyright is 
> > totally 
> > inappropriate for software too. In fact, all IP law for anything
> > representable inside a computer needs completely rewriting.
> No. I don't think book style copyright is inapropiate to software in
> principle, only recent copyright extensions and fundamentalism is
> inapropiate/dangerous, but should we go into the details?.

You should read the FSF's words on the matter. I don't believe in the 
crap about all knowledge should automatically be the free property of 
all mankind - but I do believe it should become so after the creator 
has been adequately rewarded for their hard work.

The new ability of technology to let me share most copyrighted work 
with millions of others without paying a penny means that existing 
copyright law is unenforceable. This effect will grow until there 
will no longer be any realistic financial reward for writing a book 
or song, filming a movie or making a television series. And most 
certainly not for writing some computer software except as a pure 
services role like military contracts. The profit margin on those are 
rapidly decreasing too as more off the shelf components become 

> > That time is coming. The day someone writes a cheap peer-to-peer
> > fully encrypted and completely untrackable file sharing system with
> > integrated anti-spy measures, the death bell will truly have
> > knelled. I estimate no more than five years away.
> The day they put in prison the authors and a few exemplary users,
> seize the communication companies, etc. your wonderful technology
> comes to nothing. This is wishful thinking. Freedom must be understood
> and demanded by everyone, not achieved by magical means. Come on,
> they're already charging against people for having smartcard
> programmers or simply high DSL traffic at home.

They can only imprison a tiny fraction of those who "break the law". 
If what you say works, then they would have stopped recreational drug 
use decades ago. Since its use still increases, clearly you are the 
one with wishful thinking.

You cannot stop innate human behaviour. No one has ever succeeded and 
I doubt they ever will.

> > Shouldn't I comment that on a public list? I'm sure it's public
> > information.
> No. I didn't mean you shouldn't. I mean you might not want to, but
> since you do, then you evidently want to. It's perfectly ok to talk
> abut conversations with other people as long as the other people don't
> mind. No problem here. There is always a possibility than a MEP will
> feel more confident defending an amendment if he or she has some
> "surprise factor" and/or if she or he is seen as the direct drafter.

I got a strong sense that she was looking for guidance as what to do.

> > Now I finally have the proposed directive, I can finally be 
> > specific 
> > wrt revisions. I'll give it a first reading tonight before bed.
> Fine.

The first highly important one is the requirement for a working 
example of the patented software in source form (as suggested by the 
two committees lower down). We must push for that beyond all other 

The second highly important one is the amendment (also suggested 
lower down) which leaves open for radical changes if evidence of 
abuse is presented after three years. Immediately after ratification 
the FSF Europe should open a registrar on the web where the public 
can enter abuses of the software patent system. Or even better, 
another directive amendment could mandate the EU to do this for us.

The third highly important amendment is needing to set what precisely 
involves an inventive step. I would make it high ie; "a substantial 
advance over the status quo". I would also have the directive mandate 
the setting up of an independent board of software experts to 
validate this substantial advance over the status quo as the EPO 
itself clearly doesn't bother. This would save substantial litigation 
costs to EU SME's, thus saving the EU economy hundreds of millions of 
euro (and only costing very little for the independent board in 

Since the scope of the directive prevents altering EPO rules, one is 
prevented from being more radical. We need the EPO to be incorporated 
into the EU structure because it is not accountable as it stands and 
that seems silly to me. Since that seems politically unacceptable, 
the independent board looks a good idea to me - first steps in 
replacing the EPO.


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