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Software Patents Circumvent European Parliament 378

Posted by Hemos
from the the-joy-of-special-interest-groups dept.
Tom writes "Despite the european parliament's vote to exclude software patents, the patent lobby is pressing forward and patentability of software is on the agenda of a workgroup whose advise the european council will likely follow. The european council is at odds with the parliament concerning their stance on software patents. The patent lobby is facing a narrow loss in the parliament, which has voted against software patents, but now circumvents democracy by convincing the council. If they succeed, software patents could be coming to Europe before christmas." <update> The links above seem to have stopped working for me - however, ffii is carrying the news as well.
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Software Patents Circumvent European Parliament

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  • I think it means (Score:2, Informative)

    by koreaman (835838) <uman@umanwizard.com> on Monday December 13, 2004 @09:00AM (#11071754)
    Whose advice
    not
    Whose advise
  • by Anspen (673098) on Monday December 13, 2004 @09:10AM (#11071824)

    Don't you hate it when you correct a mistake with a mistake? :)

    Actually the only institution that can propose legislation is the European Commission. Both the council and the parliament can amend though.

    What I'm wondering is how they think to get this past parliament. "sneaking" it into the text or not, the subject is one where the EP has co-decision right. Which means it's shouldn't become law until the EP has voted on it

  • by Halo1 (136547) <jonas DOT maebe AT elis DOT ugent DOT be> on Monday December 13, 2004 @09:16AM (#11071860) Homepage
    For the record: if the Council approves its pro-software patents text, all is not yet lost since there is still a second reading in the European Parliament. A downside of this second reading is that the EP can only amend the Council's text using absolute majorities there (i.e., half the number of MEPs must vote in favour of an amendment, regardless of how many abstain or are even present at the vote).

    The big news is however that the Council Presidency is basically trying to circumvent the Council itself. In May, they reached a political agreement on the most pro-software patents text seen in EU legislative circles until now. At the Council meeting in May, Poland first abstained, then Germany and the Commission introduced some fake compromise amendment, and after a break Poland was not consulted again about its position, because there was a qualified majority in place even without its support. They confirmed [ukie.gov.pl] afterwards their position did not change because of the bogus compromise amendment.

    Recently, Poland confirmed its position [slashdot.org], after everyone in a meeting with HP, Novell, Microsoft and others confirmed that the text of the Council of Ministers allows pure software patents (contrary what is often claimed). And apart from Microsoft and the Polish Patent Lawyers association, everyone agreed that software patents would be bad for the Polish economy. Because the voting weights changed on 1 November (due to the joining of all the new member states to the EU), Poland's support suddenly became necessary and thus the qualified majority was officially broken.

    Other notable events since the political agreement of May are the fact that in July the Dutch Parliament asked its government to change position [slashdot.org] from being in favour to abstention, and at the start of this month all parties of the German Parliament did the same [nosoftwarepatents.com].

    So the Council currently has an ugly text on the table which is no longer supported by a qualified majority in any way, but by means of diplomatic pressure on Poland and others the Dutch presidency (lead in this case by Minister Brinkhorst) is trying everything it can to push it through nevertheless.

  • Re:Silly question... (Score:3, Informative)

    by Lonewolf666 (259450) on Monday December 13, 2004 @09:19AM (#11071877)
    The problem is that the majority of the EU governments has not decided "we will not have software patents".
    The parliament has said so, but it has not quite the clout it should have in a democratic country.
    It can still vote the proposed guideline down, which might result in no EU_wide rule about software patents at all.
    But the parliament lacks the power to make laws on its own, which is probably the greatest flaw in the power structure of the EU. If it had that power, this year's decision would be final and the patent lobby would have lost for the forseeable future.

  • by FlorianMueller (801981) on Monday December 13, 2004 @09:21AM (#11071892) Homepage
    What the EU Council is trying to do is, way above and beyond the issue of software patents, an assault at democracy itself. In a democratic system based on lawfulness, a decision needs to meet the majority requirements (in this case: the requirements for a qualified majority in the EU Council) on the day of the formal decision, not more than 6 months earlier. Since the EU Council's political agreement on May 18th, - the Dutch parliament called on its government to abstain (July 1st; abstention in the Council has technically the same effect as voting against) - the voting weights changed (November 1st, see http://www.nosoftwarepatents.com/docs/041101qm.pdf [nosoftwarepatents.com]) - the Polish government clarified that it cannot support the proposal in question (http://nosoftwarepatents.com/phpBB2/viewtopic.php ?t=158 [nosoftwarepatents.com] , November 16th) - all four groups in the German parliament agreed on a joint motion against the Council's proposal (http://nosoftwarepatents.com/phpBB2/viewtopic.php ?t=222 [nosoftwarepatents.com]) Consequently, the Belgian minister of economic affairs even said last week that there was no more qualified majority in place: http://nosoftwarepatents.com/phpBB2/viewtopic.php? t=233 [nosoftwarepatents.com] BTW, it's not just my opinion that it would be antidemocratic if the Council took the decision in question. That was said last week by Othmar Karas MEP, who is a vice president of the largest group in the European Parliament, the conservative European People's Party (Christian Democrats) - European Democrats.
  • by Albanach (527650) on Monday December 13, 2004 @09:21AM (#11071893) Homepage
    This is a good point, but seriously do keep up the fight.

    If you live in the EU, drop another quick email to your MEP and national parliamentarians. It doesn't have to be a long rant against patents - just point out the massive opposition, the threat to jobs and the duplicity of voting on software patents at an environment or fisheries meeting without even a vote.

    In the UK there will likely be a general election next year. Contact your MP now [faxyourmp.org.uk] it costs nothing bar a few minutes of your time. You can get contact details for your MEP here [eu.int].

  • by caveman (7893) on Monday December 13, 2004 @09:23AM (#11071904)
    For the benefit of non-german-speaking Slashdotters, the first addendum to document 11979 can be found here (PDF) [eu.int] and the parent document here (PDF) [eu.int]
  • Re:Silly question... (Score:3, Informative)

    by Halo1 (136547) <jonas DOT maebe AT elis DOT ugent DOT be> on Monday December 13, 2004 @09:37AM (#11072009) Homepage
    So your solution to rampant government power is... to give the government more power! Brilliant!
    No, to redistribute the power.
    Seriously, though, if this were done, what would happen when a pro-patent Parliament is elected? Then you would probably be clamoring for Parliament to be stripped of its right to make laws.
    No. The reason we want more power for the parliament is that it's the only part of the EU that's directly elected. They are also the most transparent part, the most responsive part and the most easily reachable part (by "common" people). And there's 732 of them, which automatically gives you a more diverse bunch (at least with political diversity we have in Europe).
  • Did what I could... (Score:5, Informative)

    by Anonymous Coward on Monday December 13, 2004 @09:39AM (#11072034)
    ....at least, I hope I did, still open for suggestions.

    I wrote to the people who are supposed to 'represent' me, and asked them how the hell our country (the Netherlands) could be behind this push for Software Patents, when a majority of parliament is against it.
    A couple of months ago saw a petition voted in to have the minister of foreign affairs retract his support for software patents. And now aparently not only are we voting yes, we're also behind pushing the Polish to give up their resistance to these patents?
    Even worse, this minister is from a party which supposedly is the most vocal supporter of the european -democratic- proces, demanding more power to the european parliament, and less to the council. (Great way to show it guys, now I know why I voted for you :( )

    So a call to all dutch Slashdotters, write an email to your representatives. Not much time left to act.

    CDA:
    cda.publieksvoorlichting@tweedekamer.nl
    P vdA:
    voorlichting@pvda.nl
    VVD:
    Vragen stellen aan tweede kamerleden [www.vvd.nl]
    D66:
    http://www.d66.nl/contact [d66.nl]

    (not a complete list, I know)
  • by danalien (545655) on Monday December 13, 2004 @09:42AM (#11072048) Homepage
    to link to German PDF's .. but I'd think on a worldwide site like slashdot, it'd be prudent to try to use English (if available).

    Link 1 - in English [eu.int]

    To 'Link 2 [eu.int]', there doesn't seem to be a corresponding English-version - from my vauge german skills, but mostly deductive skills - I'd say the document is some sort of addmendment to this org. Link 2 - in English [eu.int]

    But maybe someone could translate 'Link 2 [eu.int]'? ... it's only 5 (five) lines.


    PS. Linux ppl, use Acrobat's reader ... the native PDF readers seem to have trouble with these PDF's...

  • Re:Silly question... (Score:3, Informative)

    by vidarh (309115) <vidar@hokstad.com> on Monday December 13, 2004 @09:46AM (#11072078) Homepage Journal
    No, his solution is to transfer the power from the Council, which consists of the sitting cabinets of the member countries, to the directly elected EU parliament.

    It would have a profound impact, because the Council's make up depends on election systems that in many important countries favors the large established parties, followed up by the process of choosing the cabinets, which means that the Council is highly unrepresentative of the general political landscape in the EU.

    The Council is an artefact of the EU being a union of countries that are not subordinate to the union and where the executive power of the countries are each held by the cabinets - it isn't designed to be a democratic institution. It is designed to be a way for member governments to agree on common policy.

    Leaving patent legislation up to the member states wouldn't really solve anything - it would mean companies would face the cost of dealing with different policies in 25 different countries, and it would mean open source projects would have to deal with 25 potentially different approaches.

  • Re:EU Failure (Score:3, Informative)

    by Seahawk (70898) <{kd.egami} {ta} {stt}> on Monday December 13, 2004 @10:04AM (#11072210)
    Hang on!

    Patens has not been approved! The parliament voted no, and now the patent lobby is TRYING to convince the EU to do it anyway!

    IF they manage to do it THEN there is something wrong - but up until now, the democracy seems to actually work.

    So if you want to badmouth EU - at least have some better arguments, instead of saying things that are not true.

    Disclaimer - I am definately pro-EU, but I DO see valid aruments against it - just none that are worse than the benifits.
  • by mikerich (120257) on Monday December 13, 2004 @10:04AM (#11072213)
    I *think* this is what is happening. The Council is formed from the ministers of the Member States of the Union. It proposes legislation on the advice of the EU Commission (yet another body made up of appointed bureaucrats whose purpose is to develop and uphold the workings of the Union). This directive has been proposed under the so-called co-decision arrangement with the European Parliament - the directly elected body of the EU.

    In co-decision, Parliament has some measure of veto over the Council - it is the strongest of the arrangements between the parties. Council has sent the draft directive to Parliament. Parliament could adopt the proposed legislation - whereupon it would have taken effect in the EU, instead it proposed amendments.

    The amendments have then gone back to Council which now has a choice. It can choose to accept Parliament's amendments and produce a compromise directive. Or it can override Parliament - but only by a unanimous vote by the members of Council. This is why the Poles are being strong-armed.

    If Council rejects the Parliamentary amendments and fails to vote unanimously, the legislation must then head towards conciliation and arbitration which is brain-bleedingly complicated since the Commission becomes involved.

    So all is not lost, the insitutions are working, although I have to wonder about the fisheries involvement. I would have thought those ministers have their own problems at the moment.

    HTH.

    Mike.

  • by maxwell demon (590494) on Monday December 13, 2004 @10:09AM (#11072254) Journal
    But maybe someone could translate 'Link 2'? ... it's only 5 (five) lines.


    Without warranty on correctness:

    Corrigendum to the draft of the rationale of the council

    Subject: Common position of the council concerning the enactment of a guideline of the Eurropean parliament and the council about the patentability of computer-implemented inventions

    Number 17 (page 5) gets the following version:

    "Paragraph 2 was added to reveal that the range of protection of a patented invention may under certain circumstances and under exactly defined conditions also cover a computer program, being either the program alone or a program on a data medium. In the view of the council, this way the guideline follows the usual parctise of both the European patent office and the member states."

  • by Numtek (839866) on Monday December 13, 2004 @10:27AM (#11072426) Homepage
    I just joined the Foundation for a Free Information Infrastructure (FFII), that was the best I could imagine, since I'm also starting as a new supporter of a political party.
  • by Halo1 (136547) <jonas DOT maebe AT elis DOT ugent DOT be> on Monday December 13, 2004 @10:36AM (#11072493) Homepage
    I *think* this is what is happening. The Council is formed from the ministers of the Member States of the Union.
    Correct. Note that although the Council is a single legal/political body, depending on the subject that's handled different ministers attend.
    It proposes legislation on the advice of the EU Commission (yet another body made up of appointed bureaucrats whose purpose is to develop and uphold the workings of the Union).
    No, the Commission proposes the legislation (possibly on advice of the Council, I'm not sure).
    This directive has been proposed under the so-called co-decision arrangement with the European Parliament - the directly elected body of the EU.

    In co-decision, Parliament has some measure of veto over the Council - it is the strongest of the arrangements between the parties. Council has sent the draft directive to Parliament.

    No, the Commission did.
    Parliament could adopt the proposed legislation - whereupon it would have taken effect in the EU, instead it proposed amendments.
    Indeed. It could have also downright rejected it, in which case the directive project would be stopped immediately.
    The amendments have then gone back to Council which now has a choice. It can choose to accept Parliament's amendments and produce a compromise directive. Or it can override Parliament - but only by a unanimous vote by the members of Council. This is why the Poles are being strong-armed.
    No, if the Commission agrees with the amendments they propose (which it does), they only need a qualified majority (basically 2/3rds of the weighted votes + a minimum number of supporting countries). Since 1 November, the voting weights have changed and now Poland is required [nosoftwarepatents.com] to have a qualified majority.
    If Council rejects the Parliamentary amendments and fails to vote unanimously, the legislation must then head towards conciliation and arbitration which is brain-bleedingly complicated since the Commission becomes involved.
    No, if the Council does not manage to get the required majority, the directive is in limbo. In theory, it can stay forever at the Council's first reading stage (unless the Commission retracts the proposal). Conciliation only happens later in the process. First, after the Council agrees, it goes back to the European Parliament for a second reading.

    There, the EP can only amend the text that returned from the Council with absolute majorities (nr_of_MEPs/2+1 must vote in favour in order for an amendment to be accepted, regardless of how many MEPs are actually present for voting).

    Next, if the EP accepts the text without amendments, the directive is approved. It can also be downright rejected. Finally, if it's accepted with amendments it goes back to the Council for a second reading.

    I don't know the exact rules in the Council for second reading, but if they accept the Parliament's amendments the directive is again approved, and if they amend it, it goes back to the EP for the third reading.

    In the third reading, the EP can only say yes or no. If they say no, then conciliation happens.

    So all is not lost, the insitutions are working, although I have to wonder about the fisheries involvement. I would have thought those ministers have their own problems at the moment.
    An item at a Council session can either be a A-point (formality for approval) or B-point (discussion point). Because the Council reached a political agreement in May, it's technically possible to bring it as an A point on the Council for formal adoption of a Common Position (which would mean official acceptance by the Council).

    Such an A-point can happen at any Council formation. So even though the competitiveness formation is responsible for the swpats, if they bring it on as A-point they can indeed have it signed at the Fisheries Council session.

  • by Halo1 (136547) <jonas DOT maebe AT elis DOT ugent DOT be> on Monday December 13, 2004 @10:47AM (#11072580) Homepage
    Done the FaxYourMp thing already, but it seems that the EU parliament website is really not set up to make it easy to find your MEP at all. Any suggestions on how to go about this?
    See here [europarl.org.uk] (for the UK at least, others simply can go here [eu.int] and click on their country's flag to get their list of MEPs).
  • Re:glad to see (Score:1, Informative)

    by Anonymous Coward on Monday December 13, 2004 @11:31AM (#11072908)
    See: http://www.nosoftwarepatents.com/ [nosoftwarepatents.com]
  • Re:glad to see (Score:3, Informative)

    by unapersson (38207) on Monday December 13, 2004 @11:38AM (#11072964) Homepage
    Patents are meant to be non-obvious; software patents are too often extremely obvious to any programmer. It's nothing to with a programmer deciding what should happen to their program. That's what copyright law is for. People too often get software patents for things that others have already done, been doing for a long time, or is an obvious step for anyone wanting to solve the same problem in software.

    Solutions do tend to come naturally depending on the problem in programming. And frequently the same problem will be solved in the same way by a group of disparate programmers who have never met before, just because that's the logical way to solve a problem. If one of those manages to get a software patent, the others are screwed, despite coming up with the same solution completely independently.
  • by Anonymous Coward on Monday December 13, 2004 @12:30PM (#11073437)
    You are confusing the European Commission with the European Council. This is not helped by the fact that we refer to both the appointed 25 and the huge bureaucracy they lead as the European Commission. The European Council is the meeting of the cabinet ministers of member states, but of course the same name refers also to the smaller bureaucracy that is there to support the cabinet meetings. I hope this helps to increase your confusion.
  • by Tom (822) on Monday December 13, 2004 @01:15PM (#11073864) Homepage Journal
    she totally ignored me, handing back an obnoxious stock email

    Do Not Send E-Mail To Politicians(tm).

    You will be ignored. Use the phone, send a snail-mail letter or show up in person. E-Mail by citizen is regarded as spam by most politicians.
  • Re:glad to see (Score:5, Informative)

    by cpt kangarooski (3773) on Monday December 13, 2004 @01:24PM (#11073960) Homepage
    As far as I knew, patents are there to protect the inventors not the public.

    Nope. Since the relevant clause in the Constitution deals with both patents and copyrights, I think it's fair to draw from both areas of caselaw.

    The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.

    "The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U.S. 123, 127, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, 'The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.' It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius." United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948).

    Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

    A patent confers a monopoly on its holder, and the law does not allow the granting of these valuable franchises to private individuals, with consequent public detriment, unless there is a concomitant public benefit.

    Beckman Instruments, Inc. v. Chemtronics, Inc., 428 F.2d 555 (5th Cir. 1970).

    Your quote only describes what the PTO does. Not why, or even why we have a PTO in the first place!

    As far as patents and public interest - most people could care less other then the fact that they want to get everything for free (thats too bad, because life doesn't work that way).

    Nevertheless, getting everything for free would be ideal. While we can't have that unfortunately, we try to balance getting everything and getting it for free.

    I think the caveman example is bad - for multiple reasons: 1) his patent expired 2) you cannot patent something you did not invent - and fire was not a man-made function.

    1) He's a caveman. He never would've had a patent to begin with. But if you believe that patents solely should exist for the benefit of the inventor of the patented technology, then it is impossible to support their expiration.

    2) If our patent system had been there, he could have patented fire. This is because he's uniquely gotten ahold of a controlled and limited form of fire made by man, and that doesn't exist in nature. The same reasoning is how you can patent substances that are particularly pure or easily gatherable, etc. where they nevertheless do exist in nature. Happens in the biotech field all the time.

    It serves our interest to help them because if we don't - soon you will find that only major corporations own the farms (i personally hate KFC).

    That's right -- and similarly, we only have a patent system to serve our own interests.

    Here is a question: If an inventor should not have a right to collect a profit (as he see's fit) for something that he spent his time/money creating ---- why should someone who works at McDonalds serving hamburgers make a profit?

    Apples and oranges, my friend.

    Patents, like copyrights, are NOT awarded for labor. Whether an invention is made by a five year old in the course of fifteen minutes, or whether it's made by hundreds of scientists and engineers working together on a years-long billion dollar project, the patents they get are not materially different.

    And an inventor who spends a fortune in time and money to invent something that has already been invented -- even if he didn't know about it -- gets ab

  • Re:glad to see (Score:1, Informative)

    by Anonymous Coward on Monday December 13, 2004 @03:26PM (#11075348)
    Ahem. ***War & Peace Alert***

    The patent system was created to encourage inventors to do two things:

    1. Share their ideas with other people.
    2. Still invent things, having told everyone else how to make their new invention.

    The idea was that an invention could cost a lot to make. It would take months/years of costly research & deveopment to come up with a working invention, and the government wanted that invention to be easily available & mass-produced. So the patent system offered the inventor a limited-time govenment-endorsed monopoly on their invention, in return for them making the details of the invention public. This served both purposes above: it made the details public, so that other inventors could see the new invention and potentially be inspired themselves (thus making something even better), and it enabled the inventor to legally control the production of the invention, and to have a guaranteed revenue stream from it - either by licensing other companies to produce it, or by refusing that license & selling it themselves.

    This system was implemented because it was seen that sharing ideas helped foster innovation by breeding creativity. However, simply sharing ideas could leave an inventor with nothing - after a large company swoops down & takes the idea & sells you out of the market you invented.

    With software, the burden on inventors is lifted somewhat; it doesn't cost thousands/millions of dollars to invent the scrollbar-- it takes someone a moment to realize it & then a while to code it. In a large company, the people who do this wouldn't be working there unless their company could already afford to pay them, so essentially the company is getting the invention for free. In the case of a small software startup, then computers are pretty much required anyway. Writing one patentable algorithm or another doesn't have additional costs associated with it.
    I'm probably not making the point in a terribly clear manner, but what I'm trying to point out is that an algorithm (i.e. a patentable software method) does not require vast outlay, and therefore a possible lack of return on that outlay is not high enough to dissuade a person from sitting at his/her computer & writing a new algorithm. As such, the patent system is not (unlike real inventions) necessary to guarantee that good inventions are made in the software world. It is *not* a hard slog to generate a return on investment for computer software, since the manufacturing/distribution costs are minimal compared to those of, say, a refrigerator (especially if you're not making/shipping CDs, but simply offering a product for download).

    Also, the term for patents is geared towards hardware manufacturers needing to recoup a potentially very heavy investment, and does not take into account the very small amount of time it takes for one software invention to build upon advances made by others.

    The current patent term in the US is seventeen years, I believe. And that's seventeen years from the date he patent is issued, not filed/requested. It can take potentially years for a patent to be actually issued (quite likely due to the absolutely vast number of patents being applied for at the moment), at which point it grants a legal monopoly for seventeen years.

    The computer technology field (and software in particular) is innovating at a phenomenal rate. Just look at the advances in video compression for example. Just how long could all that have been held up by someone with a patent on the Fast Fourier Transform algorithm, who was unwilling to let anyone else use it, or who charged so much that new software companies can't hope to pay for it?

    You mention Joe Schmoe in his garage, inventing something. Upon what was that invention based? There are *so many* software patents out there that even the big companies like Microsoft can't be aware of them all. I mean after all, they're getting sued for patent infringement as much as anyone else (if not more). When Sun Micros
  • by Portal1 (223010) on Monday December 13, 2004 @04:07PM (#11075739) Homepage Journal
    Yesterday an article on nu.nl (Dutch)
    Seems microsoft tries to pull of a deal.
    Without public inscription
    While the Dutch government unamiously dicided otherwise and to go for open source 2 years ago
    The contract even violates european rules about public contracts.

    http://www.nu.nl/news.jsp?n=454376&c=52 [www.nu.nl]

    Seems holland is ruled by corp.inc

  • Re:I think it means (Score:1, Informative)

    by Anonymous Coward on Friday December 17, 2004 @11:05PM (#11122732)
    "advice" is often spelled "advise" across the pond.

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