t byfield on Fri, 29 Aug 2003 11:33:09 +0200 (CEST) |
[Date Prev] [Date Next] [Thread Prev] [Thread Next] [Date Index] [Thread Index]
<nettime> two data points on the EU directive on software patents |
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 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (1) economists' open letter - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - < 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 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (2) FT op-ed by bolkestein - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 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 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - # distributed via <nettime>: no commercial use without permission # <nettime> is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: majordomo@bbs.thing.net and "info nettime-l" in the msg body # archive: http://www.nettime.org contact: nettime@bbs.thing.net