<nettime> two data points on the EU directive on software patents

[t byfield <tbyfield@panix.com>]

two notable items on the EU's 'directive on the patentability of
computer-implemented inventions': (1) an open letter to the euro
parliament signed by a dozen economists, and (2) an op-ed by frits
bolkestein, eurocommissioner for internal market, customs and tax-
ation. bolkestein makes the truly amazing argument that

     The directive will not allow software itself to be
     patented. It is about patenting technical inventions
     that involve computers and use software. 

as distinct from technical inventions that involve computers but
*don't* use software? if you're assuming that some subtlety will
gallop to the rescue, guess again. he continues:

     Software alone is not an invention. A program is just a
     set of logical commands. It can do nothing on its own.
     But when a program is loaded into a computer, the
     resulting software/hardware combination may have a
     technical function - managing an industrial process or
     a communication over a mobile telephone network.
     Inventions using software to perform such functions
     could be patented under the proposed directive.

there are too-clever-by-half ways to bend this into a semblance 
of sense -- for example, by swapping in 'application' [as in: a
specified use in a precise context] for 'technical function.'
but anyone who thinks those 2CB.5 interpretations will prevail 
when the IPR psychotics set up a howl is in for a nasty surprise
-- as is everyone else in europe.

i hope some nettimers put some energy into beating this direc-
tive back into whatever hole it crawled out of. unfortunately,
we in the US have our hands full at the moment; but we may be
able to liberate you in the future...

cheers,
t

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(1) economists' open letter
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< http://www.researchineurope.org/policy/patentdirltr.htm >

   An Open Letter to the European Parliament Concerning the Proposed
   Directive on the Patentability of Computer-Implemented Inventions

    

   The undersigned economists have grave concerns about the proposed
   Directive on the Patentability of Computer-Implemented Inventions that
   has emerged from the JURI committee of the European Parliament and
   that has been tabled for vote on 1 September 2003.

   While clothed as an administrative clarification, the proposed
   Directive will provide opportunities and incentives for the
   construction of extensive portfolios of software patents.  The
   exploitation of these portfolios will have serious detrimental effects
   on European innovation, growth, and competitiveness.

   Unlike most complex technologies, the opportunity to develop software
   is open to small companies, and even to individuals. Software patents
   damage innovation by raising costs and uncertainties in assembling the
   many components needed for complex computer programs and constraining
   the speed and effectiveness of innovation.  These risks and
   liabilities are particularly burdensome for small and medium sized
   enterprises, which play a central role in software innovation in
   Europe as well as North America.  Moreover, within the ICT sector,
   expansion of patent protection has been found to lead to an increase
   in the strategic use of patents, but not to a demonstrable increase in
   innovation.

   Copyright and other rules of competition permit small and medium sized
   software enterprises to grow despite the overwhelming resource
   advantages of large companies.  As a recent report from the National
   Academy of Sciences in the US concluded: "[D]eveloping and deploying
   software and systems may cease to be a cottage industry because of the
   need for access to cross-licensing agreements and the legal protection
   of large corporations."  While some small and medium-sized firms will
   be able to prosper in this new environment, many will not.  In
   particular, validating loosened standards on patentability will cloud
   the prospects of Europe's ascendant free and open source software
   industry while preserving the dominance of present market leaders.

   We are concerned that the analysis made available to Parliament by the
   Commission and the JURI committee fails to acknowledge the problems of
   strategic patenting that have been the growing focus of attention and
   research in the U.S., as well as the unique characteristics of
   software development and use.[1]  We urge the members of the
   European Parliament to reject the proposed Directive in its present
   form and to request that the Commission develop an economic analysis
   that properly considers the potential consequences of software
   patenting for European software developers and users.

   Birgitte Andersen, Birkbeck, University of London
   Paul A. David, Oxford Internet Institute and Stanford University
   Lee N. Davis, Copenhagen Business School
   Giovanni Dosi, Scuola Sant'anna Superiore
   David Encaoua, Université Paris I
   Dominique Foray, IMRI Université Dauphine
   Alfonso Gambardella, Scuola Sant'anna Superiore
   Aldo Geuna, SPRU, University of Sussex
   Bronwyn H. Hall, University of California, Berkeley and Scuola
     Sant'anna Superiore
   Dietmar Harhoff, Ludwig-Maxmiliens Universitaet
   Peter Holmes, SEI, University of Sussex
   Luc Soete, MERIT, University of Maastricht
   W. Edward Steinmueller, SPRU, University of Sussex

   25 August 2003
   _______________________

   [2] For a detailed critique of the rapporteur's explanatory
   statement see [3]http://www.researchineurope.org/policy/critique.htm

References

   1. http://www.researchineurope.org/policy/patentdirltr.htm#_ftn1
   2. http://www.researchineurope.org/policy/patentdirltr.htm#_ftnref1
   3. http://www.researchineurope.org/policy/critique.htm

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(2) FT op-ed by bolkestein
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Comment & analysis /Comment

Plotting a path for technical patents

By Frits Bolkestein

Published: August 27 2003 19:47 

The debate on the European Commission's proposed directive on
computer-implemented inventions has generated more heat than
light. Critics say it is an attempt to introduce patenting of
software and even of pure mathematics. But this is a
misinterpretation.

The directive will not allow software itself to be patented. It
is about patenting technical inventions that involve computers
and use software. We need clear, coherent European rules, based
on existing best practice.

The distinction between software itself and the inventions that
use it may seem a bureaucratic nicety. In fact it is practical
and relatively simple. The point of patents is to reward and
encourage invention. An "invention" may be defined as "new
information that provides the solution to a technical problem".
Software alone is not an invention. A program is just a set of
logical commands. It can do nothing on its own. But when a
program is loaded into a computer, the resulting
software/hardware combination may have a technical function -
managing an industrial process or a communication over a mobile
telephone network. Inventions using software to perform such
functions could be patented under the proposed directive.

This is logical. Often a solution to a technical problem can be
implemented through hardware or software. Take controllers for
washing machines, which can be either electro-mechanical or
digital. Surely any inventor who comes up with a new way of
controlling conditions in a washing machine is entitled to patent
protection? To refuse a patent purely because the invention is
implemented using software would make no economic sense and would
be against natural justice.

The directive would not change core principles but would clarify
existing practice. Patents have long been granted for inventions
using computers and related technology. Today, this kind of
invention accounts for about 15 per cent of all patent
applications, from cars to telecommunications. So we are aiming
to make the conditions for patentability clear and uniform and to
prevent divergent interpretations by the courts.

Some critics of the proposal accept that it should be possible to
patent washing machines, telephones and cars. But they say the
data processing that goes on inside a computer is a logical
process, akin to pure mathematics, and patents have no place
there. But more and more, inventive everyday objects, including
televisions, cookers and fridges, are now "computers" and may be
connected to a network. This underlines the urgent need for sound
legislation, applying to modern realities important principles
such as interoperability.

Without the directive, the very scenario most feared by its
critics could come to pass. The courts could react to the
increasing use of digital technology by regarding anything that
uses a computer as patentable. This is why the proposal focuses
on what an invention does (controlling conditions in a washing
machine), rather than how it does it (by software or not). The
directive makes clear that if an "invention" makes no new
technical contribution - in other words, if no technical problem
is solved - it cannot be patented, no matter what it is or how it
is presented. This is the best way of ensuring that software
cannot be "dressed up" by smart lawyers to make it patentable.
The texts now under discussion state explicitly that business
methods and algorithms cannot be patented.

Computer programs are protected by copyright. Some say patents
are therefore unnecessary. But copyright and patents cover
different things. Copyright protects a computer code and provides
a reward for the investment made in writing it. Patents reward
ideas involved in inventions implemented by computers. The
beneficiaries may be different people.

Some suggest that because of the pace of development and the
degree of interdependence between computer-implemented
inventions, patents might hinder innovation. The commission
considered such arguments but found no evidence to back them up.
Fears that patents might be wielded by big battalions against
small software developers to drive them out of business have not
been borne out. European companies, large and small, would be at
a severe disadvantage to US and Japanese competitors if they were
denied protection in their home market for their future
investments. That is why we need this directive.

The writer is European commissioner for the internal market,
customs and taxation 

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