decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
EU Commission Wants Patents. Yes. Again.
Monday, January 16 2006 @ 10:50 AM EST

Here we go again. After a rather clear indication that most people in the EU do not want software patents, the EU is ignoring that and asking how best to implement them. The question isn't framed as, do you or don't you want them. It's framed as how best to move forward to get them. Oh, and they'd like to hear from "all interested stakeholders." Thanks to Cristian Miceli's article, and Ben Klemens' new book, "Math You Can't Use", there is plenty of valuable information to add to the conversation. Talk about timing. Read on for the press release with all the gory details.

******************************

Internal Market: Commission asks industry and other stakeholders for their views on future patent policy

The European Commission has launched a public consultation on how future action in patent policy to create an EU-wide system of protection can best take account of stakeholders' needs. While the Community Patent remains a priority, the Commission is also seeking views on what measures could be taken in the near future to improve the patent system in Europe. All interested stakeholders, including industry and individuals, are encouraged to reply. The closing date is 31 March 2006.

Internal Market and Services Commissioner Charlie McCreevy said: "Good intellectual property rules are essential: by stimulating innovation and leading to the successful development of new products, they help to generate growth and jobs. We want to maximise these benefits in Europe by making the single market for patents a reality. This is why I am asking businesses and individuals alike to give me their views on how we should move forward to achieve this. Meanwhile we will of course continue to strive for the Community Patent, which remains central to our policy."

The Commission is committed to boosting the competitiveness of EU industry and improving the framework conditions in which it operates. To this end, industrial property, which includes patents, has been identified as one of the seven major cross-sectoral policy initiatives in the Commission's new industrial policy put forward on 5 October 2005 (IP/05/1225). As part of its commitment to Better Regulation, the Commission has launched this consultation to ensure that any new proposals in the area of EU patents policy reflect stakeholders' needs.

The consultation focuses on three major issues: the Community patent; how the current patent system in Europe could be improved; and possible areas for harmonisation. The Commission is also seeking views on what action could be taken while work on the Community patent is continuing, in particular within the framework of the existing European patent system, or by bringing national patent systems more closely in line with each other through either approximation of laws or mutual recognition of national patents. The legal framework for jurisdiction over patent disputes is an area of significant interest in this context.

The feedback obtained from stakeholders will form the basis of a hearing, which the Commission intends to organise in Brussels on 13 June 2006. The questionnaire is available at:

http://europa.eu.int/comm/internal_market/ indprop/patent/consultation_en.htm

More information on the EU's industrial property policy is available at: http://europa.eu.int/comm/internal_market/ indprop/index_en.htm


  


EU Commission Wants Patents. Yes. Again. | 158 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off topc here (not there)
Authored by: Naich on Monday, January 16 2006 @ 11:04 AM EST
Oh foo. Sorry. Wasn't logged in. Please delete the other post and accept my
apologies for being a cretin.

[ Reply to This | # ]

Corrections here
Authored by: Naich on Monday, January 16 2006 @ 11:07 AM EST
Like the incorrect spelling of "Off Topic", for example.

Sorry. I've had a hard day.

[ Reply to This | # ]

Question for Europians
Authored by: fishyfool on Monday, January 16 2006 @ 11:14 AM EST
Are these officials elected or selected?

[ Reply to This | # ]

EU Commission Wants Patents. Yes. Again.
Authored by: Hydra on Monday, January 16 2006 @ 11:37 AM EST

Sigh...

Oh well, here's some nice anti-software patent ammo:

"Judge dreads software patents" at ZDnet. A snippet:

An Appeals Court judge has questioned whether software patents should be granted, and has criticised the US for allowing 'anything under the sun' to be patented.

Sir Robin Jacob, a judge at the Court of Appeal who specialises in intellectual-property (IP) law, has questioned whether patents should be granted for software.

[ Reply to This | # ]

Having a uniform patent system is not that bad.
Authored by: Anonymous on Monday, January 16 2006 @ 11:38 AM EST
To be honest, having a uniform patent system throughout the EU is not that bad
of an objective itself.

Obviously, it is not clear if they are going to persue software patents again by
presenting a new obscure redefinition of it.

Anyhow, I don't think they will ignore the parlement this time in their consult,
so I think this round thing will be more open

[ Reply to This | # ]

One last push?
Authored by: BobDowling on Monday, January 16 2006 @ 11:39 AM EST

Note this comment in the introduction:

Commissioner McCreevy has stated his intention to make one final effort to have the proposal adopted during his mandate.

The clock is ticking for the commissioner. Will his successor be so keen on software patents?

The document itself doesn't refer to software but with my paranoid hat on I observe that it is biased towards companies and patent-holders. “I'm a member of a loose association of coders with a common interest” might not carry much weight. But I'll be replying, and I encourage every other EuroGroklawyer to do so too. I plan to cc my MEPs too. It can't do any harm.

[ Reply to This | # ]

patent reform
Authored by: rsmith on Monday, January 16 2006 @ 12:00 PM EST
One of the things that needs doing id to prevent bogus patents. To that end I
propose the following change to the patent office.

The patent office is split in two parts. One part functions much like the
current patent office. It gets monetary incentives for successfull patents, and
deductions for patents that are invalidated by the second part.

The second part's job is to weed out bad patents. They receive a monetary
incentive based on the amount of patents that they can invalidate.

If properly implemented I think that this could go a long way toward sane
patents.

A second reform would be to limit the validity of patents to five years.

---
Intellectual Property is an oxymoron.

[ Reply to This | # ]

  • patent reform - Authored by: Anonymous on Monday, January 16 2006 @ 12:40 PM EST
    • patent reform - Authored by: Anonymous on Monday, January 16 2006 @ 01:56 PM EST
  • patent reform - Authored by: Anonymous on Monday, January 16 2006 @ 12:50 PM EST
  • patent reform - Authored by: Anonymous on Monday, January 16 2006 @ 07:51 PM EST
Is it about software?
Authored by: Anonymous on Monday, January 16 2006 @ 12:03 PM EST
PJ, why do you think this is about software patents?

The word software is completely absent from this press release.

[ Reply to This | # ]

EU Commission Wants Patents. Yes. Again.
Authored by: Anonymous on Monday, January 16 2006 @ 12:20 PM EST
I will write the software at home, stick it anonymously on a BitTorrent, and
no-one will know who knocked the 'holder of fake intellectual property' into a
cocked hat. Into a cocked hat they will be, though.

[ Reply to This | # ]

EU Commission Wants Patents. Yes. Again.
Authored by: DeepBlue on Monday, January 16 2006 @ 01:25 PM EST

Actually there is a strong case for saying that there should be a consistent EU wide policy on patents - the current system is daft as individual countries can differ on their policy - a multi national could just choose the best country to apply for a software patent in.

This could be a great chance to get a good result across the EU but it will take hard work by us.

---
All that matters is whether they can show ownership, they haven't and they can't, or whether they can show substantial similarity, they haven't and they can't.

[ Reply to This | # ]

Stakeholders?
Authored by: PeteS on Monday, January 16 2006 @ 02:12 PM EST
<< The feedback obtained from stakeholders will form the basis of a
hearing, which the Commission intends to organise in Brussels on 13 June 2006.
>>

Mr. McGreedy seems to forget that the majority of stakeholders in this debate
are the public, not large companies that wish to form a monopoly. As an EU (and
UK) citizen, I take great exception to his arrogant view that mere citizens
unable to pay for his unelected [EU commisioners are not elected posts]
lifestyle are not stakeholders in this debate.

PeteS


---
Artificial Intelligence is no match for Natural Stupidity

[ Reply to This | # ]

EU Commission Wants Patents. Yes. Again.
Authored by: jmac880n on Monday, January 16 2006 @ 03:10 PM EST

In the U.S, the stated purpose of patents and copyrights is "To promote the progress of science and useful arts".

In the case of software, is there any real evidence that patents do what they intend?

I have been a programmer for 27 years, and I seem to recall quite a bit of progress being made without the benefits of software patents. The lack of such protections did not seem to inhibit people from innovating, and even (gasp!) publishing their inventions!!!

Why did they do this outrageous act, with no patents to protect them?

Sigh... since I was young at the time, and not in a position to do so, I cannot speak directly from experience. However, I can postulate two reasons:

  1. Publish or perish. A nice monetary incentive for academic researchers.
  2. The same as a major motivation for open source - prestige among your peers. It is interesting to note that this, too, can be a nice incentive. If you gain enough prestige, employment is sure to follow...

To hear the pro-patent crowd, no important work will be done without software patents.

To prove otherwise, all you have to do is browse around the QA76.5 section of any decent college or university, and notice the publishing dates of many of the really important works.

Yes, a lot of work dates after software patents. But a lot predates it, too.

[ Reply to This | # ]

EU Commission Wants Patents. Yes. Again.
Authored by: Anonymous on Monday, January 16 2006 @ 03:17 PM EST
There is nothing about Software patents there

What is says is someone high in the foodchain has decided it's time to harmonize
EU IP law (and remember, IP law is much larger than software IP law, and in fact
the IP EU cares most about is not the software-related one)

This could be very bad or very good. What it means is one won't be able to
cancel the debate just because it didn't went the intended way, like they did in
the European Parliament last time. The bureaucrats heading this will be judged
on whether they can produce some sort of document or not, so they will produce
one (what's inside it is still open, and yes I'm not na´ve enough to think
patent lobbies won't try to rewrite history once again)

So the next patent round is open. Let's try not to finish it with a draw this
time, let's actually get the european directive we want.

[ Reply to This | # ]

EU Commission Wants Patents. Yes. Again.
Authored by: ruskie on Monday, January 16 2006 @ 03:20 PM EST
Where are the petitions to sing..

---
I'm just a nobody IRL...
But I'm sombody in the virtual world...

[ Reply to This | # ]

How to implemnt it
Authored by: darkonc on Tuesday, January 17 2006 @ 01:41 AM EST
Via a 'satellite' office on Alpha Centauri, with all critical documents needing to be delivered by personal courier.
(special thanks to Douglas Adams).
If they insist on proposing nonsense, why not add nonsense to their proposals?

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Repost after deletion..idea to consider
Authored by: Mark Grosskopf on Tuesday, January 17 2006 @ 02:40 AM EST
Why not take the King David approach to splitting the child?

Require that a party submitting for a patent furnish a bond, in addition to
filing fees.

One for prior art.

The filer must post a bond with a face value of $1 million USD (Doc Evil
number), which equates to about 5% or $50,000 USD, if usual guidelines are
followed. Face value is forfeit if prior art is discovered...

This would work well with the new approach to software patents review w/IBM /
Open Source alliance. Entities that issue the bonds with a 95% risk factor to
consider, require a much more THOROUGH review of existing "art" and
obviousness. Essentially bonding entity is certifying an extensive review has
occurred, and that the item up for patent is not OBVIOUS, etc.

It would be self sustaining...the bond cost is submitted to the USPTO/EUPTO and
is non-refundable -- a bigger supply of cash with which to operate. USPTO or
EUPTO could hire "experts" then to search existing technology.

If it comes up "positive", that is, prior art exists which negates the
uniqueness of the patented item, well, then the applicant loses the face value
of the bond -- the issuer of the bond has to pay up to the USPTO/EUPTO. This
result will NOT make the bond issuer happy and she could raise the percentage
of what must be paid for the bond, or sue the applicant, or blackball the
applicant from filing, which other bond issuers could use to prevent that
individual from
filing. Oh, and the BOND ISSUER ALSO CERTIFIES IN THE BOND THAT THEY HAVE NO
ECONOMIC GAIN IN THIS FILING.

In other words, they cannot have any agreements, on the side or otherwise, in
place by which they can profit from the approval of the patent. And the bonding
agency must be registered. The applicant cannot provide the bond; which
eliminates self funding. King's X on the multitude of stupid patents, especially
since the cost has risen and the cost of being wrong is much greater. Would
also keep bad patents out of court.

Yes, it would create a whole new profession -- application technology evaluators
--, but this approach could have eliminated MS FAT patent based on technology
expert review, I think, not the somewhat stilted result we have now.

Even though it would cost more per patent, the bonding would help ensure that
legitimate patents are filed with proper knowledge domain surveys.

There are also other things that can be done, like depletion allowances as used
in oil reserves -- establish a value and life cycle duration up front and when
that value or time gets depleted -- well how else to place the item into the
public domain. And lawsuit penalties also count against this, since they are
usually for "lost profit". Establishing life cycle duration, based on
life cycle of the technology domain -- software evolving much faster than
manufactured objects, therefore possessing a much shorter life span.

Just an idea...I always like the approach of solving the riddle of sharing
what's left of a pie. One person cuts it, the other gets first choice of which
piece to take... almost guaranteeing equity.

MG

[ Reply to This | # ]

WRONG WRONG WRONG, this is *ABSOLUTELY* about software....
Authored by: Anonymous on Tuesday, January 17 2006 @ 07:06 AM EST

The *word* software is indeed not actually used anywhere in the document,
however it does state this...

"The EPLA would be an optional litigation system common to those EPC States
that choose to adhere to it.

The EPLA would set up a European Patent Court which would have jurisdiction over
the validity and infringements of European patents (including actions for a
declaration of noninfringement,actions or counterclaims for revocation, and
actions for damages or compensation derived from the provisional protection
conferred by a published European
patent application). National courts would retain jurisdiction to order
provisional and protective measures, and in respect of the provisional seizure
of goods as security."

The EPO has already granted 40,000+ software patents. Now they want to set up a
judicial body (European Patent Court, EPC) that has jurisdiction on the validity
of those patents.

Sure, it says it is optional for member states to choose to adhere to it, but
once you get just one situtation, where a single European patent is validated in
one state that recognises this "EPC" and invalidated in another state
by that states national judiciary, you then only need one little tiny
legislative step (and these go on all the time in the European) that allows for
the EPC to be an appeals court against national rulings (the interests of Europe
being greater than the interests of individual nationa states).

Note quote also appears to say that National courts would only retain
jurisidiction in enforcing any infringement liabilities, which means they
categorically do not retain jurisdiction over validity.

They need change nothing, the EPO *already* grants software patents, they just
don't have any legal standing...yet.

_AD






[ Reply to This | # ]

WRONG WRONG WRONG, this is *ABSOLUTELY* about software....
Authored by: Anonymous on Tuesday, January 17 2006 @ 07:53 AM EST
The *word* software is indeed not actually used anywhere in the document,
however it does state this...

"The EPLA would be an optional litigation system common to those EPC States
that choose to adhere to it.

The EPLA would set up a European Patent Court which would have jurisdiction over
the validity and infringements of European patents (including actions for a
declaration of noninfringement,actions or counterclaims for revocation, and
actions for damages or compensation derived from the provisional protection
conferred by a published European patent application). National courts would
retain jurisdiction to order provisional and protective measures, and in respect
of the provisional seizure of goods as security."

The EPO has already granted 40,000+ software patents. Now they want to set up a
judicial body (European Patent Court, EPC) that has jurisdiction on the validity
of those patents.

Sure, it says it is optional for member states to choose to adhere to it, but
once you get just one situtation, where a single European patent is validated in
one state that recognises this "EPC" and invalidated in another state
by that states national judiciary, you then only need one little tiny
legislative step (and these go on all the time in the European) that allows for
the EPC to be an appeals court against national rulings (the interests of Europe
being greater than the interests of individual national states).

Note quote also appears to say that National courts would only retain
jurisidiction in enforcing any infringement liabilities, which means they
categorically do not retain jurisdiction over validity.

They need change nothing, the EPO *already* grants software patents, they just
don't have any legal standing...yet.

_AD






[ Reply to This | # ]

EU Commission Wants Patents. Yes. Again.
Authored by: Anonymous on Tuesday, January 17 2006 @ 11:37 AM EST
There's 2 ways to get yourself a cat.

1) Go to a cat show. Inquire whether the cat has come from a production process where the user has a patent licence. Inquire whether the cat was reproduced under the terms of a valid copyright licence. Assuming you get 'Yes' answers, you figure the vendor has the right to sell you the cat. Buy it. This gets you a 'commercial cat'. All rights reserved, specifically no reproduction except under licence and no creating derivative works.

2) Ask around, find who has some cats, more than they want. Figure whether they are to be trusted. Ask about licensed production process; get a quizzical look. Ask about copyright, the owner says you can let the cat do pretty much what it likes. With any luck, this gives you a 'free cat'.

Now, neither the 'commercial' cat nor the 'free' cat is guaranteed defect-free. Both of them will appreciate the services of a vet, from time to time.

Software's the same. And the smart corporations are doing the equivalent of opening vet's surgeries.

[ Reply to This | # ]

EU Commission Wants Patents. Yes. Again.
Authored by: Anonymous on Tuesday, January 17 2006 @ 01:02 PM EST
What sanction does Charlie McC have in mind, for someone who infringes a patent with free software ? And it is for unlicensed devleopment, importation, marketing, giving away, servicing, distribution, transferring across a network, hosting, or what ?

I can hardly wait until someone hauls the radioastronomers into court for running 'glibc' on a 12288-processor monster here LOFAR radiotelescope

No-one does commercial software for it. Free software is the only choice available

[ Reply to This | # ]

Software Patent possibly affects US Federal Government
Authored by: Anonymous on Tuesday, January 17 2006 @ 03:19 PM EST
This article about a softwar e patent problem appeared in The Times (London) newspaper (last year) regarding software patents; in particular how they affect one product that is favoured by the US Federal Government - Blackberry handhelds:
BLACKBERRY owners in Britain could be cut off from using their handheld computer-cum-phones if the software company loses a key court ruling expected before January 12.
...
Even the US federal government has entered the case. It said that it had become dependent on BlackBerrys and wants to make sure that federal workers would not be cut off from mobile access to their e-mail.
I find it interesting (and funny) that the US Federal Government could be affected by a software patent. If there are more cases of these problems for Government, how quickly do you suppose software patents would be repealed?

(Incidently, I haven't followed it up: does anyone know the outcome of the ruling?)

[ Reply to This | # ]

Junking patents is an improvement.
Authored by: Anonymous on Tuesday, January 17 2006 @ 03:49 PM EST
There are excellent arguments that a splendid way to improve patents would be to
junk them altogether. Failing that, imposing requirements that patent applicants
prove that they are the first inventors (searching all information from all
sources), and that they prove the ideas are not obvious by some test like asking
10 experts in the field for solutions and showing that none of them came up with
the idea. The system would be better still for individuals or small businesses
if these efforts (esp. the second) were done by the patent office...but they
must really be done. Such searches would be costly in time and money because
there is so much info to search and some is not in current print. A 100 year old
magazine article is publication too. Others should be allowed to come up with
their own groups of experts and if any such groups come up with the idea
proposed for patent, it should be considered obvious. Also having 2 different
people come up with the same idea at the same (within a few weeks) time is prima
facie evidence the idea was obvious.

[ Reply to This | # ]

EU Commission Wants Patents. Yes. Again.
Authored by: Anonymous on Wednesday, January 18 2006 @ 11:14 PM EST
why not simply make patent restrictions legally enforceable *only* for
proprietary code? i think this would be a great compromise! i think this is the
last thing we should fight for, if everything else fails. do you agree?

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )