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EU Rapporteur Publishes Software Patent 172

Posted by samzenpus from the listen-up dept.
Sanity writes "Michel Rocard, economist and former French prime minister, has just published a report on the European Software Patents Directive. He is the European Parliament's draftsperson or "rapporteur" on the directive, and so it is likely that his views will be taken very seriously. The anti-software patent lobby group FFII like the report, saying that it "contains all the necessary ingredients for a directive that achieves what most member state governments say they want to achieve: to exclude computer programs from patentability while allowing computer-controlled technical inventions to be patented." The Directive will have its second reading on July 6th."
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EU Rapporteur Publishes Software Patent More

EU Rapporteur Publishes Software Patent

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  • im confused (Score:5, Interesting)

    by Anonymous Coward on Thursday April 21, 2005 @05:03AM (#12300985)
    Does this mean that a computer simulation of a patented product or technique would be legal?

    • Re:im confused (Score:5, Informative)

      by lovebyte ( 81275 ) * <lovebyte2000@g[ ]l.com ['mai' in gap]> on Thursday April 21, 2005 @05:37AM (#12301086) Homepage
      What Michel Rocard has done is specify that to be patentable, a software must be controlling the forces of nature. Thus simulations are out, software controlling a robotic arm is in.

      • Re:im confused (Score:4, Funny)

        by maxwell demon ( 590494 ) on Thursday April 21, 2005 @06:10AM (#12301171) Journal
        How tightly is "controlling the forces of nature" defined? After all, one could argue that controlling the flow of electrons in a microchip (which software obviously does when you run it on a normal computer) would also be controlling the (electromagnetic) forces of nature.

      • Re:im confused (Score:4, Interesting)

        by Alsee ( 515537 ) on Thursday April 21, 2005 @12:09PM (#12303737) Homepage
        Thus simulations are out, software controlling a robotic arm is in.

        Note that he also mentions that only the technical aspects can be considered in evaluating the patent. He defines:
        "Technical field" means an industrial field of application requiring the controllable forces of nature to obtain predictable results in the physical world.

        So you could only get a patent for some physical teaching about using the arm in some novel and nonobvious manner. For example you could get a patent on vibrating the robotic arm in some novel way that produces an unexpected and useful molecular resonance in the metal alloy. An actual physical discovery that really has nothing to do with software.

        What you could *not* get a patent on was some complex software analyzing vision inputs and algorithmically searching through the vast array of possible ordinary robotic arm movements to select the one to achieve some ordinary and obvious physical result. A 'novel' and 'nonobvious' calculation lies in the field of math, not in a feild of technology. Software is a feild of math, not a feild of technology. No matter how new and complex your math, no matter how new and complex your software, logic and calculations are not inventions. You cannot get a patent on simply controlling a robotic arm in physically ordinary motions.

        I'd say he's got it nailed perfectly. You get patents on actual physical inventions and physical discoveries, you cannot get a patent on abstract logic or on the ordinary application of logic (even new complex logic) to ordinary physical objects and ordinary physical processes. This guy gets my vote.

        To quote the US Supreme Court on the subject of software and software algorithms:
        the novelty of the mathematical algorithm [referring to software and software algorithms] is not a determining factor at all. Whether the algorithm was in fact known or unknown at the time of the claimed invention, as one of the "basic tools of scientific and technological work," it is treated as though it were a familiar part of the prior art.

        That is a point mid-level US courts violated when they decided to expand patentability to software and reverse well established US law. Sadly the Supreme Court has not reviewed a single patent case in an obscenely long time and they have never addressed the lower courts decision to reverse US law in apparent violation of standing Supreme Court rulings.

        -
      • No, as I read it: a robot arm would be patentable, the physical interface between the arm and the software would be patentable, but the software would not be patentable.
  • Bidding can now start...

    • Re:Guess they forgot to buy him out :-) (Score:1, Funny)

      by Anonymous Coward

      Maybe "no patents"-organisations already did ;)

    • Don't worry the decision is being made in the middle of the summer (July) when most members of parliament are away on a few weeks holidays. Since an abstention/absence counts as a yes vote, it'll likely walk through.

    • Re:Guess they forgot to buy him out :-) (Score:5, Insightful)

      by ThinWhiteDuke ( 464916 ) on Thursday April 21, 2005 @09:17AM (#12302200)
      Look, I don't share most of Rocard's ideas (he's a socialist). But I think he's one of the most honest French politicians. I know that this does not say much, yet I really believe in his integrity. It probably cost him his career in the 80's when he was killed politically by President Mitterrand (also a socialist) who rightly saw Rocard as a competitor.

      Since he lost all hope of ever becoming president, Rocard has been one of the very few reliable French politicians. This freed himself from demagoguery. He's been a lonely voice of wisdom on many controversial topics (pensions, health care etc...) Software patents are just the kind of causes he likes to get involved in : important long-term consequences, not much to gain politically, yet somebody's gotta do it.

      Michel Rocard's involvement in software patents is a Good Thing (TM).

  • so which is it ? (Score:3, Interesting)

    by Adult film producer ( 866485 ) <van@i2pmail.org> on Thursday April 21, 2005 @05:05AM (#12300990)
    to exclude computer programs from patentability while allowing computer-controlled technical inventions to be patented.

    They sound like one in the same to me. A computer controls my web browser and it certainly is a technical invention to *some* degree. So this would enjoy patent protection and it wouldn't at the same time.

    Or are they just trying to talk about heart-beat monitors and stuff like that ? They should be more clear otherwise it sounds like a recipe for disaster.

    • Re:so which is it ? (Score:4, Insightful)

      by gowen ( 141411 ) <gwowen@gmail.com> on Thursday April 21, 2005 @05:10AM (#12301003) Homepage Journal
      They should be more clear otherwise it sounds like a recipe for disaster.
      They are. In fact, much of it is legalese to make precisely the distinction you're making. Never assume the ambivalence and poor writing in a slashdot summary is an accurate representation of the original source.

    • Re:so which is it ? (Score:4, Insightful)

      by zeux ( 129034 ) * on Thursday April 21, 2005 @05:31AM (#12301060)
      Come on, don't tell me that you think that the report is actually the slashdot headline.

      As usual, the slashdot headline IS misleading, the report, believe me, is much more clear on this topic.

      Please, RTFR.

    • Re:so which is it ? (Score:5, Informative)

      by 0x461FAB0BD7D2 ( 812236 ) on Thursday April 21, 2005 @05:36AM (#12301078) Journal
      Actually he differentiates between the industrial application of science and algorithms to that of software.

      He differentiates between these by re-defining caractère technique, or the character of being technical, as:
      Domaine technique désigne un domaine industriel d'application nécessitant l'utilisation de
      forces contrôlables de la nature pour obtenir des résultats prévisibles dans le monde
      physique

      What this means is that only technical solutions that use natural forces (or natural science) that produce a foreseeable result in the physical world can be patented. This bars software, which is immaterial, from being patented.

      Therefore, in your example, the solutions or processes of making your monitor or keyboard could be patented, but your web browser could not, and neither could the web browser's display and rendering of HTML and so on.

      Again, IANAL, and my french is a bit rusty. But that is what I understand.

  • I say (Score:4, Funny)

    by Anonymous Coward on Thursday April 21, 2005 @05:07AM (#12300997)
    Hooray for the French!

    (this post exists solely to see if the Americans moderators on /. can overcome their indigenous [and irrational] anti-French sentiment)
    • Don't forget Poland France.

      • Re:I say (Score:2, Interesting)

        by aussie_a ( 778472 )
        Slashdot hates the STRIKE tag.

        Don't forget Poland^H^H^H^H^H France

        ladida. Waiting for my 2minutes. Doo, doo, doo. Oh crap. Only been 46 seconds. Shet. Doo, doo, doo. 1 minute now. ding, dong, ding dong. I guess the President is going to surrender to Microsoft eh? Shit, how long does 2 minutes take to pass?

    • Re:I say (Score:2, Funny)

      by Omnifarious ( 11933 )

      I do not have any irrational French sentiment. It's totally rational. I will hate the French much less as soon as various idiots stop importing impossible to spell words like 'hors d'eurves', 'faux pas', and such because French is supposedly somehow more cultured than everything else.

      But, I would still have moderated that post up. :-)

      • Hate the idiots, not the french.
      • Maybe they haven't been imported because they looked "cultured" but because they carried a meaning existing english terms didn't carry?

        This kind of things has happened many times before, both as french to english and english to french transferts, and I myself find it (as a french) a much much smarter move than trying to find a "translated bastardized" equivalent such as what some of what our ol'suckers try to feed us (why use spam when you could create the useless "pourriel"? why talk about e-mail when yo
    • Are you trying to provoke our unfortunate friends over the pond who might find it hard to accept that the French have got it right where they made a right royal FU?

    • Re:I say (Score:2)

      by drew ( 2081 )
      we don't dislike french people. on the contrary, if there were no french people, who would we make fun of?
      • we don't dislike french people. on the contrary, if there were no french people, who would we make fun of?

        Don't forget Poland!

        (Wow, there's actually THREE levels of humor in that little three-word quip!)

        -

  • Michel Rocard (Score:5, Interesting)

    by lovebyte ( 81275 ) * <lovebyte2000@g[ ]l.com ['mai' in gap]> on Thursday April 21, 2005 @05:08AM (#12301001) Homepage
    Agree or not with his past politics, there is no doubt in my mind that Michel Rocard is one of those extremely rare honest politicians. As soon as I had heard that he would be the "rapporteur" for the software patent directive, I breathed a sight of relief. There is light at the end of the tunnel.
    • Or the headlight of a speeding train!

    • Re:Michel Rocard (Score:5, Interesting)

      by zeux ( 129034 ) * on Thursday April 21, 2005 @05:51AM (#12301119)
      The biggest problem with Michel Rocard is that he is too intelligent.

      Usually, when he speaks, nobody understand him and that's why he didn't make it very high in politics.

      But I agree that he definitely is one of the last honest politicians.

      He has been against software patents since the very beginning partly because he is probably the only one who really understands what they are all about and partly because money can't buy him.

      Read the report, you'll see what I mean.

      By the way, he is a socialist.
      • The biggest problem with Michel Rocard is that he is too intelligent.

        That's a family thing, his father Yves Rocard was the father of the French atomic bomb (dual PhD maths and physics, really smart guy). His son becoming a top state servant must have been almost a disappointment.

  • Thank you Michel ! (Score:3, Insightful)

    by Jules Labrie ( 756572 ) on Thursday April 21, 2005 @05:10AM (#12301002)
    A former prime-minister who can understand the Open-Source and IT, it only deserves respect !

  • Turning out to be.. (Score:5, Interesting)

    by Suhas ( 232056 ) on Thursday April 21, 2005 @05:10AM (#12301004)
    ...be a good day. First India, then EU. When is Canada joining the club?
    • And more important, when the US will repent?

      • Re:Turning out to be.. (Score:5, Insightful)

        by meringuoid ( 568297 ) on Thursday April 21, 2005 @05:34AM (#12301071)
        And more important, when the US will repent?

        After Patent Apocalypse sends the American software industry back to year zero.

        It's only a matter of time before a major corporation with a massive patent portfolio starts failing, and looks like going out of business. Doesn't really matter who. But they'll have an option open: give up producing software and pursue patent litigation. Become SCO writ large.

        What happens to the industry in the USA when that happens? What if it goes further - what if there's a full-scale patent war between the big players?

        Answer: total havoc. Everything infringes on someone's patent. When the entire industry in the USA grinds to a halt, but all is well in Europe, that's when the US will repent.

        • When the entire industry in the USA grinds to a halt, but all is well in Europe, that's when the US will repent.

          Could happen a bit earlier, already when there is a huge software market in the rest of the world, but most companies refuse to sell their stuff to the USA for fear of silly litigation. This might not be too far away.

        • What happens to the industry in the USA when that happens? What if it goes further - what if there's a full-scale patent war between the big players?

          The problem with this view is that the big players are still interested in producing some kind of product in great volume, so they usually settle for cross-licensing agreements. What it's going to take is a few more companies like Eolas who are actually trying to hit up the big players. Even then, Congress will miss the point (intentionally or otherwise) with
          • that's the point of that it would happen if one of the big players would *fail* in normal business.

            then they would have no products left, or could sell their entire portfolio to some other company with no products(but enough money). imagine the amount of patents on.. say, ibm.. those patents in hands of someone without product/services could sue just fucking everybody.

  • Can someone please explain how he distinguishes computer controlled technical inventions from "computer programs"? I really see no particular distinction. The difference between the term 'computer-controlled' and 'computer-implemented' to me seems to merely be an issue of semantics.

    Perhaps there's some particular scientific viewpoint he has in mind.

    FTA:
    "Rocard explains the difference between applied natural science and data processing."

    I'm still unsure as to what it means.

    • Re:Computer controlled technical invention? (Score:5, Interesting)

      by jdifool ( 678774 ) on Thursday April 21, 2005 @05:27AM (#12301047) Homepage Journal
      Computer controlled technical inventions are, for instance, the different types of monitors (LCD, plasma, whatever), optical, wireless mouses, motherboards switches... All these devices present technical innovations, and then, should be, in MR's mind, patentable.

      Computer programs, on the other hand, are the internal immaterial parts of logic that, assembled in some way (whether good or bad), make the former tools work together....

      Well, you got the picture, don't you ?

      IMO, this is not a bad distinction. Software patents is such a quagmire when it comes to law. At least, I could endure such a bill.
      And, still IMO, MR in one of our most intelligent and honest politicians still alive, despite his irritating fatalism.

      Hope it helps,
      jdif
      • Ok, according to your description, the distinction is fine. But I don't think I could agree with this fact that such a mere distinction could justify that software can not be patented, and basically, that means only hardware and stuff can be patented.

        Before you pull your gun and shoot at me, I must declare first that I hate this idiotic patenting system as any ./er here.

        According to your distinction here, I think it's a bit unfair to those who work in software and math, and as matter of fact, anyone worki
        • The point is not to say 'don't protect people who create things, wheter they are material or immaterial', the point is to say 'tiny bits of immaterial creations cannot be protected under the patent legislation, for it would be just like confiscating words instead of protecting books'.

          As far as i know, software are protected by copyrights, or 'droit d'auteurs' in French. There are several differences between national legislations on that point, but hey, this is another problem.

          Eventually, your example is e
        • "computer controlled technical inventions"

          Ding ding ding! You hit the magic word!

          This is exactly the distinction MR makes. Computer implemented "inventions" are not inventions and cannot be patented because computers can only implement calculations. He says that computer controlled inventions are patentable, you just need some technical contribution. New math is not a technical contribution.

          He defines:
          Technical feild means an industrial feild of application requiring the controllable use of forces of na
      • These are the reasons that I doubt if it is neccessary to have patents *at all*. Of course, I would be very happy if swpats are abandoned!

        But I'd like to have a clear and independent study that shows that patents as a whole have a positive effect on innovation.
        IMHO, somehow it got implanted into our minds that having bright ideas needs monetary incentive. I fail to see how one can prove *THAT*.
        Granted, the _implementation_ of bright ideas needs EUREUREUR. But the idea itself?
    • I think the idea is that for something to be patentable, there has to be some kind of hardware aspect too (i.e. hardware specific to the invention in question).
    • I seriously doubt if anyone one slashdot can explain it any better than Rocard himself (and yes there is an english translation). Don't be afraid of any legalese, the report is as clear as crystal.

  • Does it mean that much? (Score:5, Interesting)

    by Kinniken ( 624803 ) on Thursday April 21, 2005 @05:13AM (#12301014) Homepage
    The report will certainly have some influence, but that it is very anti-patent is not surprising considering that Michel Rocard has been one of the leaders of the anti-patent side in the EP since the beginning.
    The real question is wether he can use his significant influence in the EP (he is without doubt one of the political heavyweights there) to convince the many MEPs not very committed to the matter that it's worth picking a major fight with the Commission and the Council on. I wish he can, as much because I want software patents banished from Europe as because I want to see the EP extending its influence at the expense of the Commission and the Council.
    Good luck, Michel, and thanks!

  • Don't count your chickens! (Score:4, Insightful)

    by Anonymous Coward on Thursday April 21, 2005 @05:21AM (#12301027)
    He is the European Parliament's draftsperson or "rapporteur" on the directive, and so it is likely that his views will be taken very seriously.

    Since when did the European Commission take the European Parliament seriously? Can't see this making much difference myself, so I won't be getting my hopes up just yet.
    • Since when did the European Commission take the European Parliament seriously? Can't see this making much difference myself, so I won't be getting my hopes up just yet.

      But that doesn't matter. It is now out of the hands of the EC, and into the hands of the EP. The EP has final say in this matter. The only problem is that their final say should be supported by more than 50% of its members (i.e., absentees basically vote against changes to the EC's proposal).

  • A good start (Score:4, Insightful)

    by FidelCatsro ( 861135 ) <fidelcatsro@gmaDALIil.com minus painter> on Thursday April 21, 2005 @05:22AM (#12301031) Journal
    Thank god atleast some political figures can't be bought off
    (or atleast got bought off by someone i agree with for a change (Joke) ) .
    as the Rapporteur his word will indeed hold a great deal of sway , lets just hope the money of the Software Patent lobby does'nt hold a greater ammount of sway .

    This does not by any means confirm we have won this yet , I would ask people to write to their MEP (member of the European parliment) and urge that they Read this recomendation and also show your support
    (if your anti all patents , then still support this as well , one brick at a time).

    Democracy requires that we all do our part and make our voices heard .

  • Pro-patent response from EICTA (Score:5, Informative)

    by JPMH ( 100614 ) on Thursday April 21, 2005 @05:23AM (#12301035)
    EICTA has published a pro-swpat counter-response to Rocard's paper, here [cantos.com], in advance of today's crucial meeting of the European Parliament's legal affairs committee (JURI).

    IMO, EICTA's characterisation in the paper of how the proposed "controllable forces of nature" test was received at the recent UKPO worshops is highly misleading.

    • Re:Pro-patent response from EICTA (Score:5, Insightful)

      by Sanity ( 1431 ) * on Thursday April 21, 2005 @05:38AM (#12301089) Homepage Journal
      EICTA has published a pro-swpat counter-response to Rocard's paper, here, in advance of today's crucial meeting of the European Parliament's legal affairs committee (JURI).
      Thanks for the link, this is interesting but predictable. From EICTA's paper:
      While it is acknowledged that there may be room for further improving the definition of "technical contribution" as it stands in the Common Position, any definition or test based on "controllable forces of nature" or "physical forces" would exclude patents for intangible inventions, e.g. speech coding, communication protocols, radio signal handling, error correction, data compression etc., all of which are currently patentable and traditionally have been patentable for decades.
      Firstly, all of these things are software patents, and these have not been patentable for decades, even in the US software patenting didn't really begin until about 1992.

      Groups like the EICTA claim not to want software patents, but then they go on to provide such a narrow definition of "software patent" that it really doesn't apply to anything.

      The broad conclusion from these workshops was that while definitions based on "physical forces" and "controllable forces of nature" may be more legally certain than the current definition, they are also (very) expansive, and would render almost all CII inventions unpatentable.
      Correct, because "computer implemented inventions" are software patents! "Computer Implemented Inventions" is a term specifically invented by the pro-software patent lobby so that they could push for software patents without claiming that they are pushing for software patents. This is the level of honesty of the pro-software patent lobby in the EU.
    • Comment removed based on user account deletion
    • Wow, thanx for the link. I was rolling on the floor laughing!

      Aside from lying about the current and past state of patent law, it is almost a perfect explanation and support for Michael Rocard's anti-SW patent paper.

      Section 1 paragraph 1 gives a perfect listings of "Computer Implemented Inventions" and paragraph 2 gives a perfect listing of "Computer Controlled Inventions". They even use the exact word "controlled".

      So they laid out exactly the distiction Rocard made, and in paragraph 4 they exactly state

  • Does this mean... (Score:3, Interesting)

    by Phidoux ( 705500 ) on Thursday April 21, 2005 @05:28AM (#12301051) Homepage
    ... that the EU will soon follow the example set by India?
  • # I am interested in how many here can read français? Je un peu... Legal Affairs Committee 2005-04-13 Working Document sur la brevetabilité des inventions contrôlées par ordinateur (2002/0047 (COD)) Rapporteur: Michel Rocard Le conseil des ministres a enfin adopté une position commune sur la brevetabilité des inventions mises en oeuvre par ordinateur pour permettre que se tienne le débat en deuxième lecture. Cinq états membres ont voté en faisant sa

  • Interesting read, indeed... (Score:5, Informative)

    by anpe ( 217106 ) on Thursday April 21, 2005 @05:37AM (#12301085)
    The paper is available here [eu.int].
    It is interesting because it shows that forbidding software patents is non-trivial. In particular, it raises interesting questions:
    - What is the boundary between patentable and non-patentable (how do you define it in such a way that it doesn't have side effects on other industries)
    - What is the "technical domain" that should be patentable
    - If sofware is _part_ of the patented process should it be allowed?

    • English language version (Score:5, Informative)

      by JPMH ( 100614 ) on Thursday April 21, 2005 @05:52AM (#12301122)
      English language version of Rocard's paper is here [eu.int]
    • In particular, it raises interesting questions:

      Assuming you linked to the French version of the one I read in English, it exactly answers those questions.

      What is the boundary between patentable and non-patentable (how do you define it in such a way that it doesn't have side effects on other industries)

      He the definition the EU has always had for an invention:
      (1) novel
      (2) nonobvious
      (3) useful
      (4) technical contribution

      What is the "technical domain" that should be patentable

      This is the key part, this
      • it exactly answers those questions. ... And that was my point actually :). I found the paper interesting partly thanks to Rocard's answers are elegant, but mostly because the questions he raises helped me understand the complexity of the (I used to think simple) matter.

  • so what means this...? (Score:3, Funny)

    by diegocgteleline.es ( 653730 ) on Thursday April 21, 2005 @05:54AM (#12301127)
    ...this is good or is bad? Damn, my knowledge is based in what /. considers right or wrong, if you don't say me what I've to think I don't know what to think!
    • Its good, if you don't like software patents, and if you care about innovation, you shouldn't like software patents.

      But it is only a small victory in a large battle where the other side has won many victories too.

      • I hate to say this...do I have to hate software patents?
        • I hate to say this...do I have to hate software patents?

          You dont' have to, but I'd be curious where your reasoning diverges...

          (1) EU patent law says you only have an invention if you make a new nonobvious and useful technical contribution.
          (2) Software can only implement calculations/mathematics/logic. It is fundamentally a feild of mathematics.
          (3) Math and logic is not a feild of technology.
          (4) No mater how new and nonobvious and useful mathematics is, it is not a feild of technology and not a technical
  • Working Document
    on the patentability of the inventions controlled by computer (2002/0047 (COD))

    Rapporteur:
    Michel Rocard

    The Council of Ministers finally adopted a joint position on the patentability of the inventions implemented by computer to allow that the debate in second reading is held. Five Member States voted while letting know in writing that they voted to resolve the procedure, but which they wished to see the text modified by the Parliament. Our dissension of the first turn was heard.

    This t

  • my own letter (or manifesto) to the EU parliament (Score:5, Informative)

    by N3wsByt3 ( 758224 ) on Thursday April 21, 2005 @06:03AM (#12301154) Journal
    [this is my own 'manifesto' to the EU parliament which I have send as a petition and in 'correspondence with EU citizens' as provided by the EU parliamentary site. Though it says they normally respond within reasonable time (to acknowledge they have received it), untill today I didn't hear anything back. also my question about the lack of response came back unanswered. So, I guess I'll have to copy and distribute it personally to 100+ parliamntarians myself, after all...]:

    Manifesto on the directive of "computer implemented inventions"

    Dear MEP,

    As you are probably well aware, soon the EU parliament will have a 'second reading' of the directive for allowing patents on "computer implemented inventions", which, as I will show below, actually amount to allowing software patents (swpat), though this is heavily disputed and denied by the proponents of the directive, including the European Commision (EC).

    The way in which this directive has gone through the EU Council of ministers is mindboggling and shows exactly how much the EU has a democratic deficit. Despite the fact there was no real majority for the draft anymore (the change in vote-weight after the enlargement alone accomplished that, apart from a lot of change of minds of some other countries), despite the fact that stringent motions of national parliaments were passed to oblige the national ministers to redraw the proposal as an A-item so that it may be further discussed, despite the fact that the EU parliament and their JURY-commision asked for a new first (re)reading with almost unanimity, the EC chose to ignore and disregard all this, while giving no explanation, apart from "for institutional reasons as to not create a precedent". In other words, the "common position" had to be followed, even though there was no common position anymore, because, aparently, the form is more important then the facts.

    This is a stupifying prime example of absurd bureaucratic reasoning and mentality; to give more importance to formality, and to place appearances before the changing facts. Bureaucracy abhors changes, even to the detriment of real democratic values. But then again, maybe this shouldn't surprise us, as the EC is exactly that: bureaucrats, whome were never voted into the position they occupy, yet create laws that could potentially influence millions of EU citizens (to which they do not have to answer to). The EU constitution leaves this democratic deficit as it is, alas. And as seen by the handling of this directive, the deficit is pretty huge.[1]

    I will not go further into the procedural mess and the apparent disrespect of the EC for the EU parliament, but rather concentrate on the different aspects of the directive itself (content). I will do this by stating, and then debunking, the rather dubious claims and arguments made by the pro-directive camp, which, alas, also include some misguided MEPs - though I haste myself to say the large majority of the EU parliament is well aware of the facts, as can be readily seen by the amendements made in the first reading.

    The following statements for why it is necessarry to have the (current) directive is as follows:

    1)It is necessary for the stimulation and development of new software, so that IT-companies can be innovative to the fullest of their potential.

    2)It is necessary for the stimulation of EU softwarebusiness, so we can effectively compete on the world-market.

    3)It is needed for the harmonisation of the internal market, and to retain the status quo. (Similar as the "we do not change the current practise" or the "it will avoid drifting towards US-style patentability" -argument).

    I will now debunk all these arguments (sources mentionned at the end of the document) in a rational and clear way, instead of all the FUD currently being made by many of the softwarepatents (swpat) proponents.

    1)It is necessary for the stimulation and development of new software, so that IT-companies can be innovative to the fullest of their potential.
    • I have a request: could you please post the footnotes too?
      • well, I have nothing against it on itself, but it's *a lot* of pages and slashdot isn't really meant for that. Feel free to contact me through email, however, and I will send them through.

    • First of all: nice read!

      But, you refer to "SME's" a few times but don't say what it is (if an average MEP will know, then it's okay). And there are a few typos and spellos, so you should run it through a spell checker.

      Also, you use the term "even when a child can see" -- that may well be, but the tone of word becomes so negative it may put the MEP in an adverse mood. Remember, you have to sweet-talk them *at least* as much as the pro-people do, so you ought to use the most positive language imaginable! ;-
      • "First of all: nice read!"

        Thanks! I was planning this for some time, and it's been made weeks ago, but I waited for reaction on the online petition (which didn't came). The real problem is getting it printed/copied 100+ times (700+, so all the meps can be reached would be ideal). Alas, time and money constraints will have to limit it.

        The most annoying thing is to get it actually distributed to the meps in question. I'm willing to go to brussels for it, but it seems you have to get permision to enter the m
    • The problem with your manifesto is that it is far too long for a MEP to read. They get tons of documents to read, and they will surely skip this text as "another one of those". You are better off stating in two hundred words or less what you want them to learn.
      • That's why I provided the 'conclusions' at the bottom. Those will suffice for the MEPs that only want to have an idea (or the 'bottomline'), while the rest of the document can be read by those that actually find the issue worthy of deeper scrutiny.

        That said, one shouldn't underestimate MEPs. I have the optimistic view that many MEPs will actually do an effort when they know the issue is controversial. And I believe, by now, allmost all MEPs are very aware of this particular directive.

  • May not be a distinction with a difference . . . (Score:5, Insightful)

    by werdna ( 39029 ) on Thursday April 21, 2005 @06:31AM (#12301218) Journal
    In the United States, before the State Street Bank case articulated the modern "tangible result" test, our jurisprudence excluded "pure" software as well, but it was a distinction without a difference. Under the test in Alapatt and other cases, so long as you articulated the program in technical terms, you had patentable subject matter. Thus, while you might not have been able to claim:

    I claim a method for instructing a computer to perform the steps of A, B and C.

    You could claim instead:

    I claim a computer system including a general purpose computing component (and possibly other apparatus) and a stored program instructing the general purpose computing element to perform the steps of A, B and C.

    or

    I claim a medium for storing and retreiving information in electronic form, configured to permit retreival of instructions for a computer system (and possibly other apparatus) to perform the steps of of A, B and C.

    While such legal niceties are interesting, they --and tests like them-- are mostly a distinction without a difference.

    • Re:May not be a distinction with a difference . . (Score:5, Informative)

      by Halo1 ( 136547 ) on Thursday April 21, 2005 @07:10AM (#12301391)
      Under the test in Alapatt and other cases, so long as you articulated the program in technical terms, you had patentable subject matter.
      That's the way the European Patent Office works today as well. The reason is that they only require something "technical" to appear somewhere in the claims. Rocard proposes that the novel, inventive stuff should be technical, and additionally insists that the term "technical" be defined (because currently, the EPO considers things like "taking into account how a computer works" and "processing image data" as "technical").
    • I direct you to the standing Supreme Court ruling in Parker v. Flook, a ruling which the hjudge in State Street Bank apparently ignored and violated, namely that all software algorithms were to be treated as "familiar prior art" for all patent purposes. You cannot "invent" math and math algorithms any more than you can "invent" a new number. You cannot "invent" mental steps.

      For patent purposes any "novelty" and "nonobviousness" in math and software does not exist and contributes nothing to satisying the cr
      • I direct you to the standing Supreme Court ruling in Parker v. Flook, a ruling which the hjudge in State Street Bank apparently ignored

        I am, of course, familiar with Flooks, as was Judge Rich, who by the way DRAFTED the Patent Act. He clearly did not ignore Flook, in State Street Bank, nor did the other judges on the panel. Flook, as well as the other Section 101 cases on point, which apparently YOU ignored, were expressly discussed and analyzed in the State Street Bank opinion, which is a matter of rec [findlaw.com]
        • Gahhh! I wrote an entire post and hit 'preview' and my computer blew up. I have to start from scratch :/ I'm sorry if I jump around a bit, but I'm too tired and irritated to rearrange the text into ideal order.

          I've read State Street and Benson and Flook and Deirh, each of them more than once (plus about a half dozen others), but I've been particularly reading and rereading Deihr. Originally (ages ago) I attacked Deirh a bad ruling... everyone cites it as being pro-SWpat and I believed them. But the more I
  • The comitee of Legal Affairs, which is responsible for this directive in the European Parliament, has discussed the topic this morning:

    Please help to make a transcript on IRC (irc.debian.org #ffii) and on the wiki page.
  • While the original report written in french is quite nice in itself the translation resulted in a badly written, erroneous interpretation prone, report...

    Anyone wants to help the EP with translations? :D

    PS: I'm neither french nor english, so I'm not going to do it.

  • Beautiful (Score:2, Informative)

    by davidkclark ( 877878 )
    Patents only work if you can take one out in all of your competitor markets.
    If you cannot patent in one country then all of your competitors will move to / come from that country.

    A corollary is:
    If yours is the only country in which it is legal to have software patents, then your competitors in other countries can take out patents for their products in your country and you cannot compete with them!

    hahah.
    I love it.
    All companies in India and the EU should make sure they take out patents in the US! Ha!
  • So.. does that mean they're a patent lobby group that's anti-software?

    Confused,

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