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

Simo Sorce simo.sorce at
Fri Aug 15 21:13:03 UTC 2003

On Fri, 2003-08-15 at 19:11, Niall Douglas wrote:
> 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.

You're a defensive position, that will less possibilities to have any of
the effects you hope.

We do not need software patents, they have already been rejected in the
past, and we can continue to do so.

Please note that we are not speaking of generic patents were software is
involved but where the core is an advancement in physics forces
knowledge, we are against pure software patents (aka patents over

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

Well unfortunately, some system have effects that cannot be mitigated,
the software patent system is such a system.

> 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 
> unratifiable.

Because they need legal loopholes, so that they can legally patent just
anything, and they need many, so that a few amendments (2-3) are not
enough to fix the mess. It is a well thought plan, they are not

> 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.

Well laws that try to go against nature tend to be so ... 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 
> available.

Please! Human history is a proof that people wrote books and made songs
long before any form of copyright existed. The fact that technology
obsoletes a way of doing things does not mean that things will not exist
anymore, only that they will be done/used in a different way. We are in
a transition period.

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

Here I agree.

> 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 
> amendments.

the source code does not grant anything. the problem of the patents on
software is that they patent an idea not a source code (and the source
code is often just banal). Patenting a specific source code is the same
as a costly copyright system, and they do not want that, they want a way
to stop competition. An the monopoly a patent grant on an idea is just

> 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.

Yeah, sure, let the commission judge it's own creation, you'll be sure
they will tell all the bad of their own work ...

> 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".

And what is an advance over the status quo? Do you have a clear
objective definition, not a subjective definition ?

> 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.

How do you select that board of experts? Why should these expert be
interested in doing such a boring job?

> 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 
> comparison).

Litigation is only the last of the bad effects of a patent system.

- You still have the everyday legal cost of a team of patent attorney
that advice you so that you do not step by mistake onto another one

- You still have to spend a lot of money trying to patent something, and
hope it will be worth the money you put in, and hope they will be useful
at least as a defensive portfolio.

- You still have to address the parasites phenomena.

- You still need to address the fact that big companies  have big
portfolios of patents and will have an unpaired advantage over SMEs
(read: they will be able to kill any SME whenever they want).

Note the SMEs does not have enough money to invest in such things (I do
not even consider the free lance programmer, they will extinguish soon).

> 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.

The fact that the EPO get incorporated in the EU bureaucracy does not
grant nothing.


Simo Sorce - simo.sorce at
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