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| Wednesday is New Deadline to Comment on EU Patent System |
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Monday, April 10 2006 @ 03:53 AM EDT
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The Directorate
General for Internal Market of the European Commission has extended the deadline for "stakeholders" to comment on the patent system in Europe until April 12th. That's Wednesday. That means it's not too late, should you wish to express your views. Their website says this is what they'd like to have you address: The Directorate General for Internal Market and Services is consulting stakeholders on their needs in relation to the legal framework and possible actions in the field of industrial property.Views are sought on the patent system in Europe, and what changes if any are needed to improve innovation and competitiveness, growth and employment in the knowledge-based economy....
Please note that this deadline determines which replies will be taken into account for the hearing on 13 June 2006.
However, we welcome all replies submitted after the deadline. They will be duly analysed and taken into account by the Commission in formulation of the future patent policy in Europe.
The extension was asked for by FFII, who filed a formal complaint to the EU Commission's President and then met with the Commission to request an extension.
Their press release explains: "The original deadline was impossible to meet", said Pieter Hintjens, President of the FFII. "We spoke to many firms that were still preparing their response at the stroke of midnight on 31 March. The Commission has not answered all of our complaints, but this extension is welcome and helpful."...
The FFII and other organisations, including large software producers such as SAP, view the consultation procedure (which covers the Community Patent EU project and the European Patent Litigation Agreement EPO project) as the third attempt to introduce software patents into Europe.
If you'd like to see what some others have already filed, here's Red Hat's submission and iMatix's comments. There are some studies on the effects of patents here. The FFII is asking businesses and organizations to endorse its position paper, “The Consultation on Future Patent Policy in Europe – WGEPL/0601” [PDF] by filling in a form they have on their website, printing it out, signing it, and faxing it back to them, and then they will hand it in the day before the new deadline.
The form to participate is available at
http://patinfo.ffii.org/faxcollect.en.html Here's part of what Red Hat wrote, for example: 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 the Member States?
Red Hat believes the existence of business method and software patents are detrimental to both competition and innovation. In particular, the software industry operated successfully and produced dramatic innovation for years relying solely on copyright and trade secret law without software patents. Even after software patents were available, most software companies pursued them solely for defensive purposes. It has only been in recent years that a handful of large software companies have sought to use software patents as a means of sustaining dominant positions in the market, thus reducing competition and, in so doing, innovation. There is inconsistent treatment of software and business method patents among the member states of the European Union and the European Patent Office. Any Community Patent system should be established on the most conservative common denominator of such treatment, permitting patents on software only where such patents produce a tangible effect in hardware outside of general purpose computers.
4.2 To what extent is your business affected by such differences?
Red Hat believes any system that permits widespread issuance of software patents will damage not only our business, but the entire software industry, and will slow the rate of innovation by reducing competition.
4.3 What are your views on the value-added and feasibility of the different options (1)-(3) outlined above?
Harmonization of patent law, without addressing the fundamental issues of its necessity in producing innovation and competition within the software industry, is worse than the present state of the various patent systems in operation in Europe.
4.4 Are there any alternative proposals that the Commission might consider?
The Commission should insist that the European Patent Office address the issues of software and business method patents in a manner consistent with its charter, particularly Article 52 thereof.
5.1 How important is the patent system in Europe compared to other areas of legislation affecting your business?
No single piece of legislation that could be considered by the European Commission could do our business and the software industry more harm. The thicket of software patents (more than 200,000 have been issued in the U.S.) have created a degree of complexity and financial burden that no SME will be able to effectively compete. It would be detrimental to the developing software industry in Europe to have a similar system imposed.
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| Authored by: Anonymous on Monday, April 10 2006 @ 04:05 AM EDT |
It's not the UK Patent Office extending the deadline, it is the Directorate
General for Internal Market of the European Commission.[ Reply to This | # ]
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| Authored by: Chris Lingard on Monday, April 10 2006 @ 04:35 AM EDT |
Please post in HTML, and put in those links; the instuctions are at the end
of the posting page. But if you cannot, post it anyway
[ Reply to This | # ]
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| Authored by: DaveJakeman on Monday, April 10 2006 @ 04:36 AM EDT |
Spelled it rite :)
---
SCO: hunting for snarks in an ocean of sharks
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Should one hear an accusation, first look to see how it might be levelled at the
accuser.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, April 10 2006 @ 05:12 AM EDT |
| Ta for bringing this to my attention. Here's my response. Paras 1 - 3 are
middle of the Groklaw road but then I throw a stone in the pond for last-ditch
defence.
I find the idea of being able to patent a machine for wrapping
sweets acceptable but not a 'software' patent on how to unwrap a sweet. We move
from the unacceptable to the ridiculous if you consider that my patent "To
file patents electronically without the use of lawyers or agents" means your
consultation is a bit hamstrung. Then to the bizarre with my patent "For the
management of public consultations by government agencies".
I am an
innovator in software design. Any patent system as a means of protecting my
work is a non-starter. Even if the initial cost was nothing I couldn't afford
to protect it. But on the other hand, if Bigbucks claims just a tiny
infringement on one of their many 'you never know - let's put a marker down and
we'll see who has the more expensive lawyers' then I would be stuffed.
In
short, and do you really need me to tell you this? don't you see the meltdown in
the US? software patents would be a disaster.
Even if, through some
disastrous European legislative process, software patents became allowed there
needs to be the following two rules to invalidate them.
-
A patent
acts contrary to the normal conduct of life and business. (See top
paragraph)
- The original innovative notion has now been diluted by the
general advance in technology in the field. (Some vague catch-all sketch is now
developed far beyond what the originators envisaged. or Some patent of dubious
innovative value is used to blackmail a far more innovative practical
project.)
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, April 10 2006 @ 08:33 AM EDT |
This is something that needs your entire focus and attention.
Comment, spread that word, have others comment, speak up, and understand that
the full battle ready death star is a vision of the dark side.
Use you power of the pen, the blog, whatever... as there might be never again a
chance is this becomes...
[ Reply to This | # ]
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| Authored by: ciaran on Monday, April 10 2006 @ 08:42 AM EDT |
FSFE have put their comments online, see
FSFE' s
response to the EC Patent Questionnaire.
If you don't have any time,
you could simply send a note that you support someone else's response (such as
FSFE's). If you have some time, you could support someone else's response, and
add your own comments. Or if you will be drafting a full response, hopefully it
will be useful to read other responses. [ Reply to This | # ]
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| Authored by: Anonymous on Monday, April 10 2006 @ 11:37 AM EDT |
For what it's worth: Pieter Hintjens, described here as president of the FFII,
is also the founder of iMatix, whose comments are cited in the article. The
iMatix website features an editorial by Pieter from 2003, and I presume that he
still leads the firm. The editorial likens Microsoft and SCO to the Ice Barons
of the 19th century, who fought the introduction of refrigeration.
iMatix is a European software and consulting firm that makes most of its
products available under the GPL.
[ Reply to This | # ]
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| Authored by: bradley13 on Monday, April 10 2006 @ 01:07 PM EDT |
It can certainly do no harm - I've sent in a reply on behalf of our company. The
worst they can do is ignore it...
An excerpt:
> 5.1 How important is the patent system in Europe compared to other areas
> of legislation affecting your business?
Having a patent system is, for a small company, like knowing that someone has
planted landmines in your garden. You aren't equipped to find the things, so all
you can do is hope that you don't step on one of them. The patent system is
important, but in an entirely negative sense.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, April 10 2006 @ 08:58 PM EDT |
Dear Mr. Nooteboom,
I am replying to your "Questionnaire On the patent system in Europe".
I think that my views can be expressed best by commenting on Section 4.
Section 4 - Approximation and mutual recognition of national patents
The proposed regulation on the Community patent is based on Article 308 of the
EC Treaty, which requires consultation of the European Parliament and unanimity
in the Council. It has been suggested that the substantive patent system might
be improved through an approximation (harmonisation) instrument based on Article
95, which involves the Council and the European Parliament in the co-decision
procedure with the Council acting by qualified majority. One or more of the
following approaches, some of them suggested by members of the European
Parliament, might be considered:
(1) Bringing the main patentability criteria of the European Patent Convention
into Community law so that national courts can refer questions of interpretation
to the European Court of Justice. This could include the general criteria of
novelty, inventive step and industrial applicability, together with exceptions
for particular subject matter and specific sectoral rules where these add
value.
(2) More limited harmonisation picking up issues which are not specifically
covered by the European Patent Convention.
(3) Mutual recognition by patent offices of patents granted by another EU Member
State, possibly linked to an agreed quality standards framework, or
"validation" by the European Patent Office, and provided the patent
document is available in the original language and another language commonly
used in business. To make the case for approximation and use of Article 95,
there needs to be evidence of an economic impact arising from differences in
national laws or practice, which lead to barriers in the free movement of goods
or services between states or distortions of competition.
My views:
I am very much in favor of a patent applicant only having to make a single
application for a patent. This could be done with a central EU patent office or
it could be done by using the existing patent offices in the Member States. I
have no preference as to which method you choose. Whichever way it is done it
would have to be done with a uniform law. I doubt that "harmonisation"
will prevent problems with individual Member States having different and
sometimes conflicting patent laws. I think that patent law will have to be a
single European Union patent law.
A single European patent law would standardize patent practices which are now
different among the Member States. The one aspect of standardized patent law
which concerns me is the idea of software patents. Some Member States currently
allow software patents and other Member States disallow software patents. I am
strongly in favor of abolishing software patents throughout the European Union.
Software property has always been protected by copyright. With copyright the
owner of software is reasonably clear. The original owner is whoever wrote the
code and the rights must be explicitely sold in writing for a new owner to be
established. There may be some tough situations such as when derivative works or
collaborative development are involved but the basic principle remains: you
track who is the original author and then determine what subsequent licenses and
contracts say.
Patenting software in addition to copyright creates a big mess. With patents
ownership is a mess. Whoever wrote the software is not the owner of his own
software unless he patented the ideas contained in his software. The owner of
the ideas is whoever filed some document written in legalese with a patent
office. Multiple filings may be and ususally are applicable leading to multiple
owners. There is no way for a developer to identify if a patent applies to his
software unless he goes to court. The patent holders don't know if their patent
apply to the somebody else's software either and have to sue to find out. The
burden of the process may force the developer to pay for a patent license that
is either invalid or not applicable to his code.
Because of the danger of being sued by a software patent holder large
corporations has amassed patent portfolios to be used as a defense in a patent
suit. If a rival software company sues over patent infringement then the best
defense is to counter sue using some patent that the defendent holds.
Large corporations have amassed large portfolios of computer software patents
and use the old Cold War concept of Mutually Assured Destruction to prevent
other corporations from attacking them in a computer software patent war. It is
fairly common for MAD club members to cross license their patents between two or
more members thus insuring that they will not get into a patent war with each
other.
Predator corporations which own nothing but computer software patents have
risen. These predators are called patent trolls. Since patent trolls produce no
marketable software product they are safe from MAD because a member of the MAD
club cannot counter sue the patent troll for violating software patents held by
the MAD club. The victim corporations can usually defend themselves by finding
prior art, which is expensive. If the sued corporation cannot find prior art
then they are held to ransom by the patent troll. There has been a recent well
publicized patent troll attack in the United States on the Blackberry portable
phone/email device. In that case the victimized company was a Canadian company
called Research In Motion. Research In Motion found the prior art necessary to
invalidate the patents being used as weapons against them but were too late to
avoid paying a hefty damage settlement.
The computer software industry has a relatively low cost of entry. It is very
common for one or a few computer programmers to create a hopefully hot new
product and try to sell it. The threat of being sued by either corporations
in the MAD club or to a lesser extent by patent trolls has added a very high and
completely unnecessary barrier to entry into the computer software market.
(Patent trolls will not sue companies with no money. Some MAD club members will
sue potentially strong competitors which are still too weak financially to
survive an expensive lawsuit.)
I am advocating that The European Union pass laws to declare that computer
software cannot be patented. Existing computer software patents should be
declared null and void so that the existing defensive patent portfolios are not
grandfathered into a barrier to entry against new software companies. Repealing
computer software patents and relying only on copyright will leave the MAD
club's computer software property still as fully protected as ever. It will
cut the ground out from under the law suit happy patent trolls because they have
no copyrighted product. It will reduce the cost of entry into the computer
software business back to what it was before computer software patents existed.
Eliminating computer software patents will erase the drag on the economy caused
by the cost of filing computer software patents, the costs of negotiating MAD,
and the costs of fighting computer software patent lawsuits.
Sincerely,
Steve Stites
2933 Marshall Street
Falls Church, Virginia 22042
U.S.A.
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| Authored by: Anonymous on Monday, April 10 2006 @ 09:33 PM EDT |
I have often wondered why the patent system does not allow the defendant to
argue that an invention is not innovative and worthy of a patent if it is
re-invented independently by someone else. Surely if more than one person comes
up with the same why of doing things, without referrence to the other person
patent, then the invention is not innovative enough to be worthy of a patent an
instead is just a normal evolutionary improvement in the state of the art.[ Reply to This | # ]
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| Authored by: Sander Marechal on Tuesday, April 11 2006 @ 05:52 AM EDT |
I already filed my response (in name of my company) over two weeks ago. Thanks
for the head-up though :-)
---
Sander Marechal
Geek, Programmer and many more, but not a lawyer[ Reply to This | # ]
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