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To Patent- og Varemærkestyrelsen Erhvervsministeriet Helgeshøj Allé 81 2630 Taastrup E-mail: pvs@dkpto.dk København, November 3rd 2000
In regards to the hearing about the Basic Proposal amendment of the European Patent Convention. SSLUG's comments to the Basic Proposal were requested by the PVS in a letter dated October 24th 2000. Please note that the reply deadline for this request was unacceptably short; the request could have been made earlier.
Nonetheless, SSLUG's conclusion is as follows:
Our recommendations for the Danish government's position at the European
Patent Office (EPO) Diplomatic Conference in München in November is as
follows: The modification of Article 33 and 52 in the proposed amendment of
the patent convention should not be put to the vote. If, however, this
amendment is put to the vote, then we recommend a no vote on both
modifications.
The question of European software patents has a profound impact on the development and evolution of the information society. A narrow economic assessment is not sufficient to gauge the full impact of software patents. Thorough and extensive investigations of the effect on many different areas of society are required before the full impact can be assessed in a satisfactory manner for the society as a whole.
Please refer to comments made to the press by the German Minister of Justice: [http://www.spiegel.de/druckversion/0,1588,100120,00.html] (in German)
The fact that the European Commission's Internal Market Directorate October 19th initiated a hearing with a deadline December 15th suggests that the decision regarding the present exclusion of "computer programs" in Article 52 should be postponed, at least until the official hearing period is concluded. A rash decision should not be made during the EPO Diplomatic Conference in November. [ http://www.europa.eu.int/comm/internal_market/en/intprop/indprop/soften.pdf]
The 10-9 vote in the EPO Administrative Council in September 2000 shows that there is no decisive majority among the EU member states for removing the existing exception of patents of "computer programs".
At the EPO Diplomatic Conference in November, each EU member state will have one vote. However, it will be unacceptable for a majority of the EU citizens if small states outside the EU push the Basic Proposal through, especially if EU member states such as Germany, France, England, Spain, Portugal and the Scandinavian countries would prefer to take a more cautious approach by awaiting the result of the EU-hearing, and possibly making additional independent inquiries.
Do not forget that the EU should not be a cooperation of wealthy companies, but should be the European Union of the European citizens. The citizens of Europe should have their say in defining the future development and evolution of the information society. This should not be left to so-called "independent reports" made by the patent lobby, such as the Intellectual Property Institute (IPI).
See: Graham Lea from The Register. "Patent lobby get in early for EU consultation process. [http://www.theregister.co.uk/content/1/14305.html]
SSLUG made its view regarding the EPO amendment known to commissioner Frits Bolkestein October 23th 2000. Please see [http://petition.eurolinux.org/consultation/viewMail?oid:int=1] (letter from pto@sslug.dk) or [http://www.sslug.dk/emailarkiv/itpolitik/2000_10/msg00442.html]
In the following we will elaborate our clear recommendation, that especially Article 52 and Article 33 should not modified as it is proposed in the Basic Proposal amendment.
During the last half year an intensive debate has raged about the value of patenting computer programs and algorithms. Patenting computer programs are a relative recent practice. The major software companies in the USA began acquiring patents as late as 1994.
Before 1994 companies were very successful without having to obtain and use software patents. Microsoft is an example of a successful company, that has made its progress primarily without the usage of patents.
Before a decision is made about software patents it is of the utmost importance that a thorough and neutral inquiry is made. This inquiry should assess the effect of software patents on the development of the information society. In addition it should investivate to what extent software patents will influence the prospects of the citizens in making free use of and participating in the future information society.
The Open Source community is against software patents. Software patents will limit the possibility of creating free and innovative applications: applications that can be used and improved by everybody. Concepts such as email and the world wide web, and the software, which is used to transmit email and web pages over the Internet, were conceived and developed within the Open Source community. Both email and the world wide web have created many new opportunities for the democratic processes, for the individual citizen, and for commercial interests.
Software patents will furthermore inhibit creation and impede the growth of small innovative companies. Such companies can not afford the expenses associated with the legal investigations required to review their software against possible violations of large companies patent portfolios. Only a small number of people read and understand the issued patents. They are anything but easy reading--even for professionals.
The Internet is a hotbed for small innovative companies and the Internet economy has been estimated to be 10% of the turnover of the Danish industry in the year 2000. See "Danmark.com - Kortlægning af de danske internetpionere" (Danmark.com - Survey of the Danish Internet pioneers) by PLS RAMBØLL (page 18 - 21) [http://www.pls-ramboll.com/DanmarkCom/index_forside.html] (in Danish)
The rationale behind patents is to protect the inventor, while furthering innovation and development by making the inventions public after a certain period of time. The question whether software patents further innovation has mostly been examined by economists, and the inquiries show that software patents, at best, have no positive effect on development.
This can be concluded from for instance the IPI-report, which has been published by the EU-Commission, from the report that that been commissioned by the French administration. [http://www.pro-innovation.org] (in French), and by various articles written by economists.
On the basis of a model of sequential innovation Dr. James Bessen (Harvard) and Professor Eric Maskin (MIT) conclude that software patents inhibits innovation. See: "Sequential Innovation, Patents and Imitation", [http://www.researchoninnovation.org/patent.pdf].
The effect of software patents can be measured quantitatively by the change in the ratio between expenditure for research and development and proceeds from sales. The experiences from the USA is that this measure remains constant for the companies who obtain the majority of the software patents. The conclusion is that the financial support for research and development, granted when a software patent is issued, does not cause an increase in proceeds.
In Denmark only a qualitative investigation has been made about the attitude of companies towards software patents - "Danmark.com - Kortlægning af de danske internetpionerer" af PLS RAMBØLL (pages 95+96). [http://www.pls-ramboll.com/DanmarkCom/index_forside.html].
The conclusion with regards to software patents is unclear. However, only 15% of the companies are dissatisfied with the current situation, and only 11% intend to use the possibilities for acquiring patents to a large or very large extent.
The report also mentions that the effect from any change in the legislation regarding software patents will have repercussions for companies that do not expect to acquire or own patents, because software patents creates the possibility of parasitic e-squatter activities. An e-squatter would get patents on unused, but potentially valuable future e-business methods and/or e-technologies (in analogy with the Internet Domain squatters that, for instance, register a name such as windows95.com, and license it to a company who would like to use that particular domain name.)
The question of whether software patents are useful for sharing information is a completely different matter. Again, it is our judgment, that the answer is no. If a company owns a software patent, that patent will make any incremental developments very difficult for all other companies.
So frequently an exclusionary effect is observed instead, where patented solutions are avoided - either because of the strategic importance, or simply because of the increase in the product price, caused by the licensing expenses of a patent acquired by another and possibly competing company.
Almost all software patents are patents of logical and abstract principles (algorithms). Such an algorithm is in principle no different from a baking recipe or a knitting pattern, and can be implemented using software, a micro chip or by manual labor.
Information regarding technical aspects can be shared in those circumstances where an algorithm is implemented in software, simply by making the source code of that implementation public. The source code implementing an algorithm corresponds to a very long verbose text explanation of that algorithm, just like a picture corresponds to a thousand words.
Today certain companies make the the source code of their programs public. Some of these companies are privately owned (for instance Sun Solaris), others are Open Source (for instance Linux). The free and unhindered access to source code is of great importance for users and developers.
Public source code does not only make it possible to share technical knowledge and information between software developers, but it also guarantees interoperativity, as secret formats and functions can't be hidden in public available source code.
Public access to the source code also allows many developers to find and correct bugs. These are among the reasons why there is such a very high level of innovation present within the Open Source community.
The introduction of software patents creates a whole new situation. If a company makes their source code public, they become exposed to risks, as this enables competing companies to suggest alleged violations or complicity in patent violations.
That alone removes many of the incentives a company might have for making any source code public, which is detrimental for the free sharing of knowledge and information. This is an aspect of software patents that has so far been ignored by the EU-Commision's Internal Market Directorate.
We would like to draw attention to two major flaws in the report, made public by the EU-Commission (made by the IPI lobby organization):
Innovations of a technical character are the central elements of patent law. Only technical inventions should be patentable. A broad consensus can probably be reached about this. However, it requires a definition of "technical". A definition that is currently missing in the IPI report made public by the EU.
Originally "technical" had a very narrow definition, formulated by Professor Kolle, a recognized legislative author, more than 23 years ago. Professor Kolle wrote that regarding computer programs as technical was very dangerous, as this would lead to a slippery slope where anything could be considered technical. This is the essential problem of software patents.
If the current exception of software patents is removed from Article 52 in the München Convention, then all software can be considered "technical"; consequently the word "technical" will lose its meaning. In that case everything can be regarded as being technical, and the result will be a patent system without limits as in the USA. A technical knitting pattern or a technical baking recipe becomes possible.
The IPI report mentions different scenarios. It regards the translation of the existing EPO practice into law as being status quo. However, this is a mistake, as in many instances the current EPO practice is in conflict with the national practice. And national patent practice takes precedence over EPO practice as this is mere jurisprudence, not law as the national practice.
The translation of the current EPO patent practice into EU legislation will lead to a major change in the European patent legislation and the current concept of patents. This could be very detrimental for the development of small and medium sized companies, which comprise the majority of the innovative Internet companies in Europe.
A scenario which the IPI report fails to mention is the real status quo: demanding that EPO act in accordance with the existing legislation and national patent practice.
Not only should the current exception of patents on computer programs remain, but very precise guidelines should be formulated by politicians and law experts, guidelines that clarify the situation for the national patent offices and the EPO. We regard this as the only way where the present situation of a continued undermining of the München Convention can be avoided. However, a problem that has to be solved is to clearly define the meaning of "software".
The EPO has taken the initiative to amend the European Patent Convention, because it is the wish of the EPO to harmonize the legislation of the member countries, such that the member states legislations mirrors the current EPO practice.
Almost no rulings has been made by the courts in the USA or the national courts in the EU member countries evaluating the validity of software patents. However, the current practice of the EPO is violating the European Patent Convention, now that practice is used as a basis for drafting a new convention. This is not acceptable.
We are against conferring more power to the EPO with its closed and non-transparent administration. This seems to be against the Danish beliefs of the inviability of the democracy, and emphasis on openness and transparency in the public administration.
It should also be noted that the EuroLinux-Alliance in just a few months have collected in excess of 53.000 European signatures (about 2500 of these are from Denmark): signatures from individuals and companies, who are all against software patents. See: [http://petition.eurolinux.org]
A so-called independent inquiry was made by the Institute for Opinionsanalyse (The Danish Institute for Opinion Analysis, abbreviated IFO) in preparation of the EPO Diplomatic Conference on behalf of the Patent- og Varemærkestyrelse (the Danish Patent and Trademark Office). We would like to draw attention to the remarks previously submitted to the forum on the PVS home page.
See: PVS' debatforum
[http://www.dkpto.dk/debat/default.asp].
*
[
http://www.dkpto.dk/debat/topic.asp?TOPIC_ID=14&FORUM_ID=5&CAT_ID=1]
*
[
http://www.dkpto.dk/debat/topic.asp?TOPIC_ID=17&FORUM_ID=5&CAT_ID=1]
(in Danish)
We would especially like to emphasize the need of more and unbiased inquiries, and call attention to methodical flaws in the IFO report. These flaws biased the report in favor of the PVS views and the patent establishment, whereas the views of the software producers and users, regarding software patents, were not properly investigated.
Naturally the decision regarding software patents is made by the Danish government, and not the PVS. However, the question remains: which information is made available for the government as the basis for an informed decision about the important issue of software patents. This is the reason why we, in our hearing answer, emphasize the need of truly unbiased inquiries.
Besides paving the way for software patents, the EPO amendment to the European Patent Convention includes a proposal of conferring enhanced powers to the EPO's Administrative Council. This makes it possible for the Administrative Council to subsequently modify the treaty without consultation, such as the conference in November 2000. It is our impression that the Administrative Council is a kind of board of directors, which appoints a president that is ultimately responsible.
"Article 33. Competence of the Administrative Council in certain cases.
(1) The Administrative Council shall be competent to
amend the following provisions of this Convention
[... text left out ...] to bring them into line with an
international treaty or European Community
legislation on patents." (Page 28 of basic proposal).
In the accompanying text the modification is explained as follows:
"This new competence would allow any consensus already
achieved at EU, WIPO or WTO level to be directly echoed
in the EPC and would thus void having to hold revision
conferences for the sole purpose of adapting the PC to
texts already adopted by all or a majority of contracting
states. (page 28 of Basic Proposal)
If the WTO, for instance, wants to allow software patents, could the EPO Administrative Council modify the European Patent Convention by a purely administrative decision? We fear that member states who will not introduce software patents, could be forced to accept them on the basis of the powers conferred to the EPO by article 33.
If a vote is taken, and the existing exception of patents on "computer programs" is removed from Article 52, then it signals that software can be patented. Today several member states has a practice where software is not patentable.
The patent practice we have observed in the USA is very scary. There are numerous examples of incredibly trivial patents. We refer to the examples listed in our article in Information September 1st 2000. (English, Spanish, and Swedish translations of this article is available from [http://www.sslug.dk/artikler/no_to_software_patents.html])
It would appear that everything can be patented. However, court rulings on the validity of granted software patents with regard to the current legislation is sparse.
The fact that prior art in the form of source code is not examined when a software patent is granted is in our opinion a fundamental flaw in the patent examination process. It is also our opinion, that it is impossible for the patent office to take prior art in the form of Open Source into consideration, when issuing a software patent.
Today large amounts of source code for applications exist, such that it is not humanly possible to decide if a particular software construction has previously been used. Many billions lines of source code exists within the Open Source community, i.e. prior art, but in a form that programmers can read and understand, but in a very different form compared to the legalese found in a patent application.
Patent offices, on the other hand, describe an idea or invention in patent legalese, which makes it impossible for even experienced programmers to recognize an idea from the written description.
Nor is it possible to precisely define the broadness of applicability of a software patent, as a particular algorithm can be used in many different applications. This make software patents very different from traditional patents.
Software is special as the idea behind the software often carries information. This is particular for software inventions and this forces us to assess the impact on the development of society, when a software invention is patented. The incremental development of society is impeded, if the patent of less advanced software effectively prevents the development and application of better and more effective software.
We would also like to point out that software is a combination of technique and representation of information. It is not possible to distinguish between the intellectual and technical aspects of a computer program. To allow patents for a mixture of method and information would be charting a course into a legal minefield.
On behalf of SSLUG
with kind regards
Peter Toft, President of SSLUG
Mosebakken 23
2670 Greve
SSLUG is an economically and politically independent Linux user group with about 6000 members, SSLUG's home page is located at http://www.sslug.dk
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Denne side vedligeholdes af Peter Toft (<pto@sslug.dk>)