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European Parliament Rejects Software Patents
Posted by
Zonk
on Fri Feb 18, 2005 08:43 AM
from the (again) dept.
from the (again) dept.
heretic9 writes "The European Parliament unanimously rejected the software patent bill recently put before it. Hugo Lueders of CompTIA, a pro-patent lobby group, said that the benefits of the bill had been obscured by special interest groups, which muddied debate about the rights and wrongs of software patents." Meaning, essentially, that the Conference of Presidents got its way.
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benefits of the bill?! (Score:5, Funny)
Double standard (Score:5, Insightful)
How come when I do it, it's called "muddying debate"?
Sheesh...
Microsoft (Score:5, Funny)
Oh, The Horror (Score:5, Insightful)
How dare they discuss the bad points about software patents. Isn't the pro-patent lobby group a special interest group? What makes them think they have a right to present their views, while groups which are against software patents do not?
Re:Oh, The Horror (Score:5, Interesting)
Not as great as it looks (Score:5, Informative)
The directive was NOT rejected by the EU Parliament, but by the Conference of Presidents - essentially the group leaders of all the various parliamentary parties. It's still a good step, but it's misleading to claim this was an action by the Parliament as a whole.
This does NOT mean that the bill "is thrown out". It means that the EU Parliament is supporting it's own legal affairs committee's call for the EU Commission to restart the process and have directed the President of the EU Parliament to officially request a restart.
The bill must not "go back to the EU" for reconsideration - the EU Commission must decide whether it wants to accept the restart vote by parliament, ignore it, or overrule it. The latter two would mean the Council would go ahead as before.
What site am I on again? (Score:5, Funny)
"European software patents, formerly dead, then not dead, dead again, buried, ressurected, now dead yet again. Pope sucks. Duke surrenders. Still no cure for kitttens."
Pressure on EU to vote this Software Patent Law (Score:5, Interesting)
Rocard said : "We never could have talked a common language with the companies representatives we met - in particular those from Microsoft. Speaking about free ideas circulation, free access to knowledge, was like speaking chinese to them. In their way of thinking, everything that is not usable for immediate profit cease to be a growth vector. They don't seem to be able to understand that an invention which is a pure spirit creation can't be pattented. It's simply terrifying. Many of us, at the Parliament, agree to say that they never have know such a pressure and such a verbal violence during their parliamentary work. It is a huge case."
18 may 2004, Commission presents a new text even more liberal than the first one, and try to impose it during Agriculture Minister Concil, which primary objective was FISHING. Thanks to Poland interventions, the vote is avoided.
"Concerning France, no word from it. Jacques Chirac claimed himself against extensive software pattenting during his presidential campaing. But the current industry minister, Patrick Devedjian said nothing against the text."
A Question (Score:5, Interesting)
But if someone does come up with something truly unique that is expressed in software, how can this be legally protected so someone else doesn't steal your work after one or one-half year?
Perhaps there should be no software patents at all, just some sort of legal copyright protection for 5 years or so. But how is that uniqueness defined anyway? At what point does a subsection of code become unique enough to be protected?
As me ol' chums would say, this truly is a sticky wicket!
Re:A Question (Score:5, Informative)
Further, since you are not required to distributed code in source, it can be quite hard to copy your implementation.
Software is protected by copyright which expires 70 years after the death of the author - if copyright is owned by a company, then 70 years after publication (AFAIK).
Patents allow protection of ideas. These expires after 20 years from the patent being issued.
A new patent bill is needed (Score:5, Insightful)
The discussion is not whether new and uniform patent legislation accross EU is needed. It is about the content.
The pros want EU to align with USA, in many other areas, aligning laws with important trade partners is beneficial for all parties. But with the development in USA in this case, the benefits of such alignment can be disputed.
Unfortunately the continual rejections and attempts to force through a particular piece of paper has now become a dispute about democracy and who has the power - attention seems to be shifted away from the original content.
I am looking forward for the process to restart so the discussion can get back on track.
not over until the fat commissioners sing (Score:5, Informative)
A-items are a rubber stamping of translations, of previously agreed directives. So far, Poland have been blocking the A-item from getting onto any agendas, but they seem to have finally been nobbled.
Just in time, Denmark have decided to dig their toes in, but if they fold there is still an oportunity to push the directive through.
Of course, flouting the wills of MEPs in this way might be enough to galvanise them into kicking the whole thing out in the second reading, despite the fact that the voting system at that stage is rigged against such an eventuality.
It's a dead patent law (Score:5, Funny)
However there is a chance that the €C could, nonetheless, defy the Conference of Presidents, but it is very unlikely (and will cause even more backlash and probably eventually get the €C sacked).
Also see details of the MEPs press conference [ffii.org] and info. about the recent FFII demo by the €C HQ in Brussels [ffii.org] which no doubt helped.
I think this probably (you can't be sure of anything in Brussels) means the directive really is as dead as a dodo, so here's my dead patent-law sketch (apologies to Monty Python):
The Cast:
- Mr. Gates
- A European Commissioner
The SketchA `customer' (with brown envelopes and chequebook aready) enters the €C in Brussels.
Mr. Gates: 'Ello, I wish to register a complaint.
(The commisioner does not respond.)
Mr. Gates: 'Ello, Miss?
Commissioner: What do you mean "miss"?
Mr. Gates: I'm sorry, I have a cold. I wish to make a complaint!
Commissioner: We're closin' for lunch.
Mr. Gates: Never mind that, my lad. I wish to complain about this patent law what I purchased not two years ago from this very office.
Commissioner: Oh yes, the, uh, the computer-implemented inventions one...What's, uh...What's wrong with it?
Mr. Gates: I'll tell you what's wrong with it, my lad. 'E's dead, that's what's wrong with it!
Commissioner: No, no, 'e's uh,...he's resting.
Mr. Gates: Look, matey, I know a dead patent law when I see one, and I'm looking at one right now.
Commissioner: No no he's not dead, he's, he's restin'! Remarkable law, idn'it, ay? Beautiful sophistory and ambiguity!
Mr. Gates: The anbiguity don't enter into it. It's stone dead.
Commissioner: Nononono, no, no! 'E's resting!
Mr. Gates: All right then, if he's restin', I'll wake him up!
...
Mr. Gates: You let the European Parliament kill 'im, didn't you!
Commissioner: I never!!
Mr. Gates: Yes, you did!
Commissioner: I never, never did anything...
(Mr. Gates takes patent law out of briefcase and thumps it on the desk. Throws it up in the air and watches it plummet to the floor.)
contd...(due to limit on post size)
Dead Patent-Law Sketch contd... (Score:5, Funny)
The Sketch (contd...)
Mr. Gates: Now that's what I call a dead patent law. The JURI is no longer out on that patent law...its most definitely deceased.
Commissioner: No, no.....No, 'e's stunned!
Mr. Gates: STUNNED?!?
Commissioner: Yeah! 'E was stunned by all the public backlash! Patent laws stun easily, major.
Mr. Gates: Um...now look...now look, mate, I've definitely 'ad enough of this. That patent law is definitely deceased, and when I purchased it not two years ago, you assured me that its total lack of movement was due to it bein' tired and shagged out following prolonged internal diplomacy.
Commissioner: Well...uhhh...we prefer to do things dead slow and sure like in the EU!
Mr. Gates: Well...the dead bit is most certainly right. Look, why did it fall flat on his back the moment I got home last time? I never had these problems with Congress...
Commissioner:Remarkable patent law, id'nit, squire? Lovely contradictions and those beautiful convoluted sentences!
Mr. Gates: Look, I took the liberty of examining that patent law when I got it home, and I discovered the only reason that it had got as far as it had in the first place was that no one had actually READ it.
(pause)
Commissioner: Well, o'course they don't! They're not payed enough for that...at least they are, but we pay 'em NOT to read 'em. That's the trick, you see. Trust me...that patent law will fly straight through as an A-item in the fisheries committee...just like...a parrot, sir...you know parrots love a bit of fish...the great thing is, sir, that the ministers and MEPs avoid it like the plague on account of it stinkin' to 'igh 'eaven...
Mr. Gates: Never find how 'igh your damn committee stinks, this patent law wouldn't fly through your committee if you put four million volts through every minister present! 'E's bleedin' demised!
Commissioner: No no! 'E's just a li'l slow!
Mr. Gates: 'E's not slow! 'E's passed on! This patent law is no more! He has ceased to be! 'E's expired and gone to meet 'is maker! 'E's a stiff! Bereft of life, 'e rests in peace! 'E's pushing up the daisies! 'Is metabolic processes are now 'istory! 'E's off the twig! 'E's kicked thebucket, 'e's shuffled off 'is mortal coil, run down the curtain and joined the bleedin' choir invisibile!! THIS IS AN EX-PATENT LAW!!
(pause)
Commissioner: Well, I'd better replace it, then. (he takes a quick peek round the back) Sorry squire, I've had a look 'round the back , and uh, we're right out of patent laws.
Mr. Gates: I see. I see, I get the picture.
Commissioner: I got a HIPC initiative. Uhhh...your good...ummm...friend, Mr. Brown had this idea you see but he hasn't got the means...
(pause)
Mr. Gates: (sweetly) Pray, will it take out my competitors?
Commissioner: Nnnnot really.
Mr. Gates: WELL IT'S HARDLY A BLOODY REPLACEMENT, IS IT?!!???!!?
Commissioner: N-no, I guess not. (gets ashamed, looks at his feet)
Mr. Gates: Well.
(pause)
Commissioner: (quietly) You know I thought that uhhh...spread in Teen Beat was rather good...uhhh...D'you.... d'you want to come back to my place?
Mr. Gates: (looks around) Yeah, all right, sure.
Copyright
The original dead parrot [wikipedia.org] sketch [mtholyoke.edu] was written by Graham Chapman, et. al. for Monty Python [wikipedia.org]'s Flying Circus [wikipedia.org] and is © 1989 Pantheon Books/Random House, Inc. My modification of it is co
Guide to the Perplexed (Score:5, Informative)
Roughly speaking, the EU has a bicameral legislature, with the two houses being the Parliament and the Council. However, neither one of those bodies can introduce legislation; rather, legislation begins with a third body, the Commission.
Now, European regulations ostensibly do not permit the patenting of a computer program, as such. However, the European Patent Office, has for a while now been interpreting those regulations differently than you or I would, and issuing software patents anyway. However, such patents have not held up in court.
So the Commission drafts a new patent directive that would explicitly permit software patents that had some "technical effect," a term broad enough to encompass just about anything.
The draft directive next goes to the Parliament, where it gets severely amended, such that it would exclude most software patents.
The amended directive then goes to the Council, where it is re-amended to resemble the original version. And then something weird happens. While the pro-patent contingent got its act together long enough to amend the directive, it never got around to voting to send the amended version back to Parliament, and then, it was unclear whether they had a majority in Council anymore, and then, Council went on break.
If the Council ever gets around to sending its version back to Parliament, Parliament will have to scrape together an absolute majority (rather than the qualified majority they needed to have to amend it in the first place) to either reject or further confuse the process. If they prove unable to do so within 3 (or 4, if they vote themselves a further delay) months (a distinct possibility), then the directive comes into force, and all the various national legislatures are supposed to harmonize their laws with the directive.
Re:1-0 (Score:5, Insightful)
And I just don't get why Europe would EVER legalize software patents. Right now they are legal in Australia, India, the US, and Japan. So basically, right not, Europe is the only place in the industrialized world which can do something simple like include a help icon in its software.
Without software patents, Europe will become a Mecca of software development!
Re:1-0 (Score:5, Informative)
Here are some relavant portions of the Manual of Patent Examining Procedure (the bible by which patents are examined in the US.)
The USPTO's public MPEP [uspto.gov]
From MPEP 2106, all emphasis added
The claimed invention as a whole must accomplish a practical application. That is, it must produce a "useful, concrete and tangible result." State Street, 149 F.3d at 1373, 47 USPQ2d at 1601-02. The purpose of this requirement is to limit patent protection to inventions that possess a certain level of "real world" value, as opposed to subject matter that represents nothing more than an idea or concept, or is simply a starting point for future investigation or research (Brenner v. Manson, 383 U.S. 519, 528-36, 148 USPQ 689, 693-96); In re Ziegler, 992, F.2d 1197, 1200-03, 26 USPQ2d 1600, 1603-06 (Fed. Cir. 1993)). Accordingly, a complete disclosure should contain some indication of the practical application for the claimed invention, i.e., why the applicant believes the claimed invention is useful.
A process that consists solely of the manipulation of an abstract idea is not concrete or tangible. See In re Warmerdam, 33 F.3d 1354, 1360, 31 USPQ2d 1754, 1759 (Fed. Cir. 1994). See also Schrader, 22 F.3d at 295, 30 USPQ2d at 1459. Office personnel have the burden to establish a prima facie case that the claimed invention as a whole is directed to solely an abstract idea or to manipulation of abstract ideas or does not produce a useful result. Only when the claim is devoid of any limitation to a practical application in the technological arts should it be rejected under 35 U.S.C. 101. Compare Musgrave, 431 F.2d at 893, 167 USPQ at 289; In re Foster, 438 F.2d 1011, 1013, 169 USPQ 99, 101 (CCPA 1971). Further, when such a rejection is made, Office personnel must expressly state how the language of the claims has been interpreted to support the rejection.
There is always some form of physical transformation within a computer because a computer acts on signals and transforms them during its operation and changes the state of its components during the execution of a process. Even though such a physical transformation occurs within a computer, such activity is not determinative of whether the process is statutory because such transformation alone does not distinguish a statutory computer process from a nonstatutory computer process. What is determinative is not how the computer performs the process, but what the computer does to achieve a practical application. See Arrhythmia, 958 F.2d at 1057, 22 USPQ2d at 1036.
For such subject matter to be statutory, the claimed process must be limited to a practical application of the abstract idea or mathematical algorithm in the technological arts. See Alappat, 33 F.3d at 1543, 31 USPQ2d at 1556-57 (quoting Diamond v. Diehr, 450 U.S. at 192, 209 USPQ at 10). See also Alappat 33 F.3d at 1569, 31 USPQ2d at 1578-79 (Newman, J., concurring) ("unpatentability of the principle does not defeat patentability of its practical applications") (citing O'Reilly v. Morse, 56 U.S. (15 How.) at 114-19). A claim is limited to a practical application when the method, as claimed, produces a concrete, tangible and useful result; i.e., the method recites a step or act of producing something that is concrete, tangible and useful. See AT&T, 172 F.3d at 1358, 50 USPQ2d at 1452. Likewise, a machine claim is statutory when the machine, as claimed, produces a concrete, tangible and useful result (as in State Street, 149 F.3d at 1373, 47 USPQ2d at 1601) and/or when a specific machine is being claimed (as in Alappat, 33 F.3d at 1544, 31 USPQ2d at 1557 (in banc). For example, a computer process that simply calculates a mathematical
Re:Constitution (Score:5, Insightful)
Re:Constitution (Score:5, Insightful)
Maybe, but not in Europe. Your laws end where your borders end. Outside the US, your constitution has about as much value as a sheet of toilet paper.
Re:Constitution (Score:5, Informative)
From the ACLU [aclu.org]
Why the Patriot Act's expansion of records searches is unconstitutional
Section 215 of the Patriot Act violates the Constitution in several ways. It:
* Violates the Fourth Amendment, which says the government cannot conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.
* Violates the First Amendment's guarantee of free speech by prohibiting the recipients of search orders from telling others about those orders, even where there is no real need for secrecy.
* Violates the First Amendment by effectively authorizing the FBI to launch investigations of American citizens in part for exercising their freedom of speech.
* Violates the Fourth Amendmentby failing to provide notice - even after the fact - to persons whose privacy has been compromised. Notice is also a key element of due process, which is guaranteed by the Fifth Amendment.
Re:The Europeans Get It Right, Again (Score:5, Informative)
Read up on Santa Clara County v. Southern Pacific Railroad (1886). This is the case that defined corporations as legal people, with all the fun rights we enjoy.
IMO, a constitutional amendment to revoke such rights is in order. I do recall presidential candidates David Cobb (Green), and Michael Badnarik (Libertarian) calling for those rights to be eliminated. Cobb asked for a constitutional amendment, but Badnarik did not endorse an amendment outright.
Re:The Europeans Get It Right, Again (Score:5, Insightful)
But those same people aren't held responsible when the corporation harms someone or breaks the law. Limited liability gives investors all of the freedom and none of the responsibility that would normally go with a free market.
Re:So why s this bill such a bad thing (Score:5, Informative)
As the thread http://www.aful.org/wws/arc/patents/2000-06/msg00
So for a few years you could get software patents in Europe if you could include some reasoning in your application to say that your program has a 'technical effect' when loaded onto a computer. Since the idea of technical effect is so vague, this allows through any software patent.
Then a few years later the EPO decided that they might as well drop the pretence, and made another ruling which assumes that all computer programs have a 'technical effect'. So the explicit exclusion in the EPC is being ignored.
Now, patents granted under this dubious reasoning are not very enforceable. National courts tend to interpret the law as it is written, and not the EPO's creative interpretation. However, if the directive is passed then the already-granted software patents in Europe (which are just as silly as those in the US, see the FFII horror gallery [ffii.org]) will become legal.
The European law on patentability of software does not need 'clarifying', it is already quite explicit. We need to make the patent office follow the law as it stands.
Re:I Love How Many US Folk Still Don't Get The EU. (Score:5, Insightful)
First, GP is correct imo. There are signs, which would be too numerous to detail here, indicating that the USA is behaving as an empire, not as a nation. In a democratic way the USA wouldn't ignore international laws and customs just because noone is in the place to punish them for doing so. If you would examine your economics textbooks a bit more in-depth, you would realise that Japan beat the US economy on a lot of points, pushed the usa out of a lot of markets in the 80ies. It needs a bit longer explanation. After WW2 USA administration assumed that the soviets are 20 years behind technologically at the time. They were proven wrong by the A-bomb two years after, the hydrogen-bomb and sputnik and Gagarin. The administration had a panic reaction and realised that they need to improve the education in the states drastically, which happened in the 60ies (i'm thinking about bleeding edge science here, so universities and laboratories mainly). They pushed a TON of money into the education system and into so called "base or basic research". They came up with a lot of progress and inventions, and the electronical industry LIVES from those inventiones UP UNTIL TODAY. The USA, however stopped these researches because of the economic changes, think of oil crisis, etc. This gave place for Japan in the 80ies to grab markets, because although japan didnt run any base research, they improved the technology they bought from the USA, so that's why it had a big impact on US economy. I have to note that most of these info is from a course i'm attending now and the reasoning i presented is from my teacher specialized in this subject [hps.elte.hu]
I'm not saying that something similar is going on with the EU atm, just that there are consequences if someone ruins the education system and that the USA seems to make bad decisions when messing with the economy.
Re:I Love How Many US Folk Still Don't Get The EU. (Score:5, Insightful)
Nope. Those have gone to South China.
India.
I'll see you in Brussels, then, because that'd be the EU.
We're pretty much running along on the momentum of our past accomplishments here, although that momentum is considerable and should carry us for a decade or so before the decline becomes undeniable and the inevitable bickering about whose fault it is kicks in. The very idea of globalization is that countries do what they are undeniably best at. What is the US these days better at than any other country?
That'd be spending money.
So become an invetment banker, young man, and specialize in investing the accumulated wealth of two hundred years of domestic economic accomplishment overseas. Or if that career path is not open to you, there is always retail.
There is no will to chart out a brighter course for the people who make their living by creating things or performing services. If you doubt this, look at education reform. Oh, I have no objection to "No Child Left Behind", other than its utter lack of boldness. I was born on the tail edge of the baby boom, so I know what serious, shitting-your-pants-because-of-sputnik education reform looks like, and that ain't it.
Software patents are just another example of something that is good for capital but bad for people who create (although ostensibly it is for their benefit!). As innovation grinds to a halt because of legal uncertainty, companies can continue to exploit their past innovations without creating any new ones. For Joe Engineer, his job security is only good as his next innovation. His part ones are signed over to the company.