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

Niall Douglas s_fsfeurope2 at
Fri Aug 15 22:11:18 UTC 2003

On 15 Aug 2003 at 23:13, Simo Sorce wrote:

> > 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.

eg; the amendment "Member States shall ensure that wherever the use 
of a patented technique is needed for the sole purpose of ensuring 
conversion of the conventions used in two different computer systems 
or network so as to allow communication and exchange of data content 
between them, such use is not considered to be a patent infringement" 
has a BIG implication for operating systems such as Linux or MacOS X. 
Or indeed any non-Windows OS. Without it Microsoft could patent their 
windows media formats and Linux could not legally read them.

I call this a substantial mitigation of negative effect. I can't see 
how anyone wouldn't.

> > 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.

I didn't say people would stop writing books. I did say the financial 
reward would stop. That doesn't really matter to continued production 
of new books and songs, but it sure does for movies.

> > 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 that.

Yes I completely agree. However, as I said, we're mitigating bad 
effects here.

That amendment would substantially prevent the "patent land-grab" 
companies such as IBM are so fond of. They patent thousands of 
promising areas every year and yet develop only a few. Effectively 
they are using patents to PREVENT innovation, not encourage it.

If they would have to provide a reference implementation, land 
grabbing is much, much harder simply because software writing is 
almost the entire cost of making software.

> > 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?

In the same way the EPO *should* already be selecting experts. It 
clearly is not bothering and the EU should force it to.

> Why should these expert be
> interested in doing such a boring job?

Because they're paid to.

> 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
> patent.
> - 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).

I completely agree. The directive really should say "all patenting of 
ideas behind software shall be illegal now and forever more".

However, we are mitigating the worst effects here. As I've previously 
said, software patents are a done deal - now we can only debate the 

> > 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.

Hopefully some form of validating that a patent is actually original 
and not just plagerising some idea in common use for the last five 

I should add that every single email or letter I write to MEP's 
starts with two paragraphs saying that all software patents should be 
banned period. It then goes on to suggest ameliorations.


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