second draft of response to EC pat consultation

[Ciaran O'Riordan]

Below is first the the new draft and then a wdiff of the old and the new.
Removed words are marked [-like this-] and new words are marked {+like
this+}.

============================================

Draft response to the questionnaire "On the patent system in Europe".

Introduction

A proposal was made, in 2002, for a directive which would have allowed
patents on software ideas.  This was opposed by Free Software users,
consumer groups, most of European industry (SMEs), and more citizens than
usually take part in the EU legislative process.  It was also eventually
rejected by the European Parliament in July 2005.

The conclusions which lead to the Lisbon agenda were made before these
events.  The patent system(s) of Europe may have seemed ready for the
Community Patent in 2000.  Much has come to light, and much has been learned
since.

We welcome the European Commission's decision to defer the Community
Patent "until the time and conditions are ripe for that effort".  The
current time and conditions are not right for the Community Patent,
but the problems are fixable.  FSFE's specific concerned about patents
is in the field of software, and we look forward to assisting the
fixing of that problem.

FSFE would also like to note that some stakeholders with limited resources
for analysis and cross-referencing issues such as this have opted not to
respond to this question.  We therefore expect that stakeholders with those
with lower resources per-stakeholder will be under-represented by the
responses to this questionnaire.


Section 1

We agree, as the questionnaire states, that "the patent system
... should be used ... for the benefit of all society".  Thus, like
all law, it should be applied where it benefits all society, and
excluded from where it would cause overall harm to society.

Where the questionnaire speaks of "breathing-space" for patent owners, FSFE
would like to note that non-industrial activities of citizens must not be
restricted by being designated as the exclusive "breathing-space" of a
patent holder.  That is to say that democratised acts, such as software
development and use, and the publication of information, which society is
able to participate in, should not become prohibited for the purpose of
giving "breathing-space" to patent holders.

We do not regard the list of four patent system features as being
given in order of importance.


1.1 Do you agree that these are the basic features required of the patent
  system?

On the the four proposed desireable features for a patent system, FSFE would
like to make one modification, one clarification, and one addition.

The modification is to the first point.  FSFE does not believe that overall
objectives of the patent system should be compromised by (or "balanced
with") "the interests of the right holders".  The existence of rights
holders is an artificial measure which occurs to serve the goal of the
patent system.  Giving power of rule-drafting to a group which is created by
the rules could only yield an outcome with a clear conflict of interest.

The only balancing to be done is balancing the harm/burden to society with
the benefit to society.


The clarification is that to make "clear substantive rules", the 21
amendments which were submitted by members of all EP parties should be used.
We believe that the European Patent Convention is clear, however, the
actions of the European Patent Office and the expressed will of the citizens
of Europe show that it should be made even clearer by the 21 amendments
being incorporated.


The addition is described in our answer to 1.2


1.2 Are there other features that you consider important?

The addition is that patent law must advance society rather than
inhibit it.  Innovation, when it can be driven by public interest -
via public participation as well as via the market, and when it is
produced in a way that the public will benefit from it, should be
encouraged.

The patent system should therefore enable people to further
themselves, individually, or as a business.  This should go without
saying, but patent law proposals such as the now-rejected "software
patents" directive shows that this must be explicitly kept in mind.



1.3 How can the Community better take into account the broader public
  interest

To better take account of broader public interest, developers of European
patent policy should look at the issues from the perspective of all
stakeholders.

It must be kept in mind that some fields of endeavour are the exclusive
domain of large companies.  The manufacture of cars and pharmaceuticals are
two examples.  For these domains, medium-to-large financial, bureaucratic,
and legal restrictions can be justified because those who bear the burden
can be expected to have the necessary financial and legal resources.

In stark contrast, in the field of software, even small financial,
burean of society who can comfortably
carry the legal and financial burden of carrying such a court case to
it's conclusion.

Thus, FSFE would prefer that such bureaucratic barriers be avoided by
the incorporating of the wording such as that from the 21 amendments
proposed for the second reading of the patents directive in July 2005.


Section 4

4.1 What aspects of patent law do you feel give rise to barriers to free
    movement or distortion of competition because of differences in law or
    its application in practice between Member States?

The greatest barrier to free movement is the fear that can exist,
among bodies who do not have the spare resources for defending --
possibly spurious -- patent litigation threats, of appearing on the
radar of a patent holder.

The greatest distortion of competition is the use of industrial law
against individual citizens and businesses who are not in the same
industry as the patent holder.

Harmonisation could be beneficial if it included clarifications which could
prevent the mis-reading of the EPC.  To do this, the 21 amendments proposed
by many MEPs before the July 2005 vote, should be incorporated.


4.2 To what extent is your business affected by such differences?

We are a user of software, and although FSFE is not in the
business of developing software for profit, we nonetheless develop a
lot of software because that is the normal way to use computers.

We have developed a website with a system for automatically updating
new sections, we have developed infrastructure for sending and
archiving email, and we have developed software for secure
communication via encryption and signing.

Software patents could have the general effect of preventing u non-priority
for us, and would get an
importance of 1.  Participating in the administration and monitoring of the
patent system is of vital importance to us because changes in patent law
propose a real and serious threat, and would get an importance of 10.


5.2 Compared to the other areas of intellectual property such as trade
    marks, designs, plant variety rights, copyright and related rights, how
    important is the patent system in Europe?

On this, I would like to note that the US Federal Trade Commission, having
reviewed the overall patent system in the USA, commented that the patent
system would be better if it was more selective about what subject matter is
covered, and it gave a wholly negative report on the outcome of the
patenting of software and internet ideas.

As mentioned in answer to question 5.1, using the patent system is not no
importance (0), but preventing patent legislation from becoming harmful is a
very high importance (10).


5.3 How important to you is the patent system in Europe compared to the
    patent system worldwide?

Patent legislation Europe is of great importance.  Europe has the
opportunity, starting with the 21 amendments, to introduce highly beneficial
patent legislation and to become a leader of sensible patent policy.  On
this, the USA missed the boat.


5.4 If you are responding as an SME, how do you make use of patents now and
    how do you expect to use them in future? What problems have you
    encountered using the existing patent system?

We are not responding as an SME, and as a software developer and user
we do not have a need for using the patent system, but we would like
to comment that the barriers to entry too great to be able to
participate in the patent system anyway.

Instead, FSFE am used by the patent system.  Because FSFE develops
much of its own software infrastructure, the patent system could make
FSFE a target for patent litigation and a potential market tool and
even a potential revenue source for others.


5.5 Are there other issues than those in this paper you feel the Commission
    should address in relation to the patent system?

As mentioned in the preceding answers, the sensible exclusion of software
ideas from patentable subject matter, the separation of powers which
prevents distortion of law in democracies, the abandoning of the European
Patent Organisation's case law and the implementation of an accountable
system with proper checks and balances.

The costs, restrictions, and burdens of the patent system do not seem
to be fully considered.  Bureaucracy is sometimes needed, but it slows
society and must be minimised.  It must be kept in mind that every
patent is a regulation.  Every patent is bureaucracy.


Closing comments

In closing, we would also note that we are concerned about comments in
the questionnaire which refer to "the field of intellectual property".
The comments made here by FSFE are on patent law.  The various laws
encompassed by the term "intellectual property" are so diverse and
often unrelated that comments on that field as a whole must contain
great misunderstandings or overgeneralisations.

============================================

Draft response to the questionnaire "On the patent system in Europe".



Introduction

A proposal was made, in 2002, for a directive which would have allowed
patents on software ideas.  This was opposed by Free Software users,
consumer groups, most of European industry (SMEs), and more citizens than
usually take part in the EU legislative process.  It was also eventually
rejected by the European Parliament in July 2005.

The conclusions which lead to the Lisbon agenda were made before these
events.  The patent system(s) of Europe may have seemed ready for the
Community Patent in 2000.  Much has come to light, and much has been learned
since.

We welcome the European Commission's decision to defer the Community
Patent "until the time and conditions are ripe for that effort".  The
current time and conditions are not right for the Community Patent,
but the problems are fixable.  FSFE's specific concerned about patents
is in the field of software, and we look forward to assisting the
fixing of that problem.

FSFE would also like to note that some [-stake holders-] {+stakeholders+} with limited resources
for analysis and [-cross-refercing-] {+cross-referencing+} issues such as this have opted not to
respond to this question.  We therefore expect that [-stake-holders-] {+stakeholders+} with those
with lower resources [-per-stake-holder-] {+per-stakeholder+} will be [-under represented-] {+under-represented+} by the
responses to this questionnaire.


Section 1

We agree, as the questionnaire states, that "the patent system
... should be used ... for the benefit of all society".  Thus, like
all law, it should be applied where it benefits all society, and
excluded from where it would cause overall harm to society.

Where the questionnaire speaks of "breathing-space" for patent owners, FSFE
would like to note that non-industrial activities of citizens must not be
restricted by being designated as the exclusive "breathing-space" of a
patent holder.  That is to say that democratised acts, such as software
development and use, and the publication of information, which society is
able to participate in, should not become prohibited for the purpose of
giving "breathing-space" to patent holders.

[-FSFE would like to note that we-]

{+We+} do not regard the list of four patent system features as being
given in order of importance.


1.1 Do you agree that these are the basic features required of the patent system?

On the the four proposed desireable features for a patent system, FSFE would
like to make one modification, one clarification, and one addition.

The modification is to the first point.  FSFE does not believe that overall
objectives of the patent system should be compromised by (or "balanced
with") "the interests of the right holders".  The existence of rights
holders is an artificial measure which occurs to serve the goal of the
patent system.  Giving power of rule-drafting to a group which is created by
the rules could only yield an outcome with a clear conflict of interest.

The only balancing to be done is balancing the harm/burden to society with
the benefit to society.


The clarification is that to make "clear substantive rules", the 21
amendments which were submitted by members of all EP parties should be used.
We believe that the European Patent Convention is clear, however, the
actions of the European Patent Office and the expressed will of the citizens
of Europe show that it should be made even clearer by the 21 amendments
being incorporated.


The addition is [-mentioned-] {+described+} in our answer to 1.2


1.2 Are there other features that you consider important?

The addition is that patent law must advance society rather than
inhibit it.
[-It-]  {+Innovation, when it can be driven by public interest -
via public participation as well as via the market, and when it is
produced in a way that the public will benefit from it,+} should {+be
encouraged.

The patent system should therefore+} enable people to further
themselves, individually, or as a business.  This should go without
saying, but patent law proposals such as the now-rejected "software
patents" [-directive,-] {+directive+} shows that this must be explicitly kept in mind.



1.3 How can the Community better take into account the broader public interest

To better take account of broader public interest, developers of European
patent policy should look at the issues from the perspective of all [-stake
holders.-] {+stakeholders.+}

It must be kept in mind that some fields of endeavour are the exclusive
domain of large companies.  The manufacture of cars and pharmaceuticals are
two examples.  For these domains, medium-to-large financial, bureaucratic,
and legal restrictions can be justified because those who bear the burden
can be expected to have the necessary financial and legal resources.

In stark contrast, in the field of software, even small financial,
bureaucratic, or legal restrictions would cripple most developers of
software because most developers of software are individuals, small
companies, medium sized companies, or companies whose core business is not
software development.

Maximum transparency, {+the interests expressed by the public,+} and the
involvement of the directly elected European Parliament, is also
requested.


Section 2

2.1 By comparison with the common political approach, are there any
    alternative or additional features that you believe an effective
    Community patent system should offer?

{+Yes.+}  It is imperative that the [-seperation-] {+separation+} of power, a foundation of European
democracy, is maintained - and improved when possible.  As such, one issue
that FSFE [-sees,-] {+sees+} is that Judges on any such "Community Patent Court" (the
Judiciary) should not come from the Execuative or Legislative bodies of the
patents field.  The mixing of legislative power into the European Patent
Organisation (and executive body) is already being seen by some as the root
of problems in European patent law.

FSFE is also concerned about the transfer of patent-granting power to the
European Patent Office (EPO).  The EPO has granted many patents contra to
the European Patent Convention, and the non-legallity of those patents has
been confirmed by rejection of them in national courts.  With this history,
the EPO must clearly be given a more limited, supervised, and accountable
role in the patent process.



Section 3

3.1 What advantages and disadvantages do you think that pan-European
    litigation arrangements as set out in the draft EPLA would have for
    those who use and are affected by patents?

The advantages of such arrangements can only really be judged by the content
and substance.  An agreement which benefits society by not creating software
patents would be beneficial because it would avoid imposing industrial
restrictions on those who cannot bear such restrictions,

We feel, however, that arrangements made within the EU legsilative process
are more likely to produce such results.

The EU's legislative process has enough problems with lack of citizen
awareness and participation.  Allowing the circumvention of this process for
a process further removed from the people is a anti-democratic direction
which should be avoided.  Instead, democratic processes should be followed
and ways should be sought to lower the barrier of entry for citizens and all
[-stake holders-]
{+stakeholders+} to participate in the legislative process.

{+One particular point is that any created courts must very carefully
avoid conflicts of interest.  Judges on such courts must not have
prior history within any of the various patent offices or any
organisation with a financial interest in any of the European patent
systems.+}


3.2 Given the possible coexistence of three patent systems in Europe (the
    national, the Community and the European patent), what in your view
    would be the ideal patent litigation scheme in Europe?

[-(No comment.)-]

{+FSFE would like to highlight Article 6 of the European Convention on
Human Rights, particularly with regard to the right to an independent
and impartial judiciary.

On litigation schemes, FSFE would like to make the comment that
litigation schemes focus on dispute resolution.  While this can be
beneficial by creating case law, it is more important to have clear
rules which can be interpretted clearly by citizens and lawyers
without unnecessarily leaving open the need for court cases.  Reliance
on court cases favours a small section of society who can comfortably
carry the legal and financial burden of carrying such a court case to
it's conclusion.

Thus, FSFE would prefer that such bureaucratic barriers be avoided by
the incorporating of the wording such as that from the 21 amendments
proposed for the second reading of the patents directive in July 2005.+}


Section 4

4.1 What aspects of patent law do you feel give rise to barriers to free
    movement or distortion of competition because of differences in law or
    its application in practice between Member States?

The greatest barrier to free movement is the fear that can exist,
among bodies who do not have the spare resources for defending {+--
possibly spurious --+} patent litigation threats, of appearing on the
radar of a patent holder.

The greatest distortion of competition is the use of industrial law
against [-civilians-] {+individual citizens+} and businesses who are not in the same
industry as the patent holder.

Harmonisation could be beneficial if it included clarifications which could
prevent the mis-reading of the EPC.  To do this, the 21 amendments proposed
by many MEPs before the July 2005 vote, should be incorporated.


4.2 To what extent is your business affected by such differences?

[-My employer is-]

{+We are+} a user of software, and although FSFE is not in the
business of developing software for profit, we nonetheless develop a
lot of software because that is the normal way to use computers.

We have developed a website with a system for automatically updating
new sections, we have developed infrastructure for sending and
archiving email, and we have developed software for secure
communication via encryption and signing.

Software patents could [-prevent-] {+have the general effect of preventing+} us from
creating such IT [-infrastructures,-] {+infrastructures+} or from distributing the software we [-develop.-]
{+developand.  Uncertainty in the law confounds this.+}


4.3 What are your views on the value-added and feasibility of the different
    options (1) - (3) outlined above?

Suggestion #1: subject matter is the core issue and must be more clearly
addressed.

Suggestion #2: lacks [-defintion-] {+definition+} and cannot be commented on.

Suggestion #3: is the most [-promlematic-] {+problematic+} of all.  The conflict of [-intereste-]
{+interests+} inherent in patent offices which are funded by accepting
patents would be greatly amplified as offices could compete.

Adding a validation step involving the European Patent Office [-is unlikely to-] {+would be
a sham.  It woul+} have [-any-] {+zero+} effect as the European Patent Office has [-a proven-]
{+the worst+} history of {+all European patent offices for+}
expansionism/inflationism of patent law with regard to subject matter
and of lowering the standard for other criteria.  {+European Patent
Office practice is the exact problem which must be addressed before
there can be the possibility to create added value.+}


4.4 Are there any alternative proposals that the Commission might consider?

Alternatives should begin with the 21 amendments which were proposed by
members of all the EP parties for the July 2005 vote.  From there, a system
being developed must contain [-seperation-] {+separation+} of power, [-transparency,-] {+tnransparency,+} and must be
accountable when it strays from it's mandate.

{+Also, the current financial incentive for patent offices to accept
applications must be addressed.  One option is to have the same fee
charged for patent application reviews - whether they are accepted or
rejected.  The system whereby patent offices receive greater income
for accepting more patents creates a system which is very close to
making the patent offices "sellers" of patents.  To prevent patent
offices from aiming to maximise sales, checks and balanances could be
introduced, although there is no evidence that these could be relied
on, so it seems also necessary to fix the financial incentive.+}



5.1 How important is the patent system in Europe compared to other areas of
    legislation affecting your business?

The patent system, if stretched to cover software, would pose great danger
to software developers, harm to Europes software infrastructure, and
distortion of competition law.  Saving Europe from this harm is a high
importance to FSFE.

Using the patent system is a non-priority for us, and would get an
importance of 1.  Participating in the administration and monitoring of the
patent system is of vital importance to us because changes in patent law
propose a real and serious threat, and would get an importance of 10.


5.2 Compared to the other areas of intellectual property such as trade
    marks, designs, plant variety rights, copyright and related rights, how
    important is the patent system in Europe?

[-The question is ambiguous.

It could mean: "How important is Europe's patent system to Europe?"-]

On this, I would like to note that the US Federal Trade Commission, having
reviewed the overall patent system in the USA, commented that the patent
system would be better if it was more selective about what subject matter is
covered, and it gave a wholly negative report on the outcome of the
patenting of software and internet ideas.

[-It could also mean: "How important is the patent system in Europe to you?"-]

As mentioned in answer to question 5.1, using the patent system is not no
importance (0), but preventing patent legislation from becoming harmful is a
very high importance (10).


5.3 How important to you is the patent system in Europe compared to the
    patent system worldwide?

Patent legislation Europe is of great importance.  Europe has the
opportunity, starting with the 21 amendments, to introduce highly beneficial
patent legislation and to become a leader of sensible patent policy.  On
this, the USA missed the boat.


5.4 If you are responding as an SME, how do you make use of patents now and
    how do you expect to use them in future? What problems have you
    encountered using the existing patent system?

[-I am-]

{+We are+} not responding as an SME, [-but-] {+and+} as a software developer and user [-I-]
{+we do not have a need for using the patent system, but we+} would like
to comment that [-I have found-] the barriers to entry too great [-for me-] to be able to
participate in the patent [-system.-] {+system anyway.+}

Instead, [-I-] {+FSFE+} am used by the patent system.  [-The-]  {+Because FSFE develops
much of its own software infrastructure, the+} patent system could make [-me-]
{+FSFE+} a target for patent litigation and a potential market tool and
even a potential revenue source for others.


5.5 Are there other issues than those in this paper you feel the Commission
    should address in relation to the patent system?

As mentioned in the preceding answers, the sensible exclusion of software
ideas from patentable subject matter, the separation of powers which
prevents distortion of law in democracies, the abandoning of the European
Patent Organisation's case law and the implementation of an accountable
system with proper checks and balances.

The costs, restrictions, and burdens of the patent system do not seem
to be fully considered.  {+Bureaucracy is sometimes needed, but it slows
society and must be minimised.+}  It must be kept in mind that every
patent is a regulation.  Every patent is bureaucracy.  [-Bureaucracy is sometimes needed,
but it slows society and must be minimised.-]


Closing comments

In closing, we would also note that we are concerned about comments in
the questionnaire which refer to "the field of intellectual property".
The comments made here by FSFE are on patent law.  The {+various+} laws [-contained-]
encompassed by the term "intellectual property" are so diverse and
often unrelated that comments on that field as a whole must [-cover-] {+contain+}
great misunderstandings or overgeneralisations.


============================================


-- 
Ciarán O'Riordan ______________________ \    To support free software, join
http://ciaran.compsoc.com/ _____________ \     and tell others about FSFE's
http://www.fsfe.org/fellows/ciaran/weblog \ Fellowship: http://www.fsfe.org