Software patents loom large again ??

Pa ElGrande · 18-01-2006 12:08am #1

Software patents loom large again
Monday, January 16 2006
by Deirdre McArdle
http://www.electricnews.net/frontpage/news-9663470.html

Europe's Internal Markets Commissioner Charlie McCreevy on Monday launched an initiative that could re-open the controversial software patents debate.

As part of the initiative McCreevy has unveiled a public consultation on how future action in patent policy to create an EU-wide patent system can take account of "stakeholders' needs." The Commissioner is also looking for feedback as to how to improve the patent system in Europe.

Both individuals and businesses are invited to contribute to the consultation, which will run until 31 March. In launching the initiative McCreevy said that the European Commission wants to make the single market for patents "a reality." He urged individuals and businesses to give their views on how that could be achieved.

Back in July 2005, the European Parliament voted by a huge majority to reject the Computer Implemented Inventions directive, which would have created a single EU-wide patent process for software-related inventions. The controversial directive had sparked bitter debates between big business and smaller software developers and technology firms.

The bill had been supported by the European pro-patent lobby, which included corporations such as Microsoft and Sun, who claimed that the directive would encourage investment in research and development in Europe.

On the other hand, it was strongly opposed by anti-patent groups, including software developers IrishDev, who felt that it would result in a small number of large corporations owning the majority of patents. These groups argued that this would lead to restrictive licensing practises which could hinder innovation.

The directive had also been previously rejected by the European Parliament at committee level but as a result of a concerted push by McCreevy and the Commission, it was resurrected. McCreevy has long been a supporter of the patents directive and this latest move is unlikely to be welcomed by those opposing the bill.

Feedback obtained from those taking part in the consultation will form the basis of a hearing, which the Commission is organising in Brussels on 13 June.

Views are sought here - http://europa.eu.int/comm/internal_market/indprop/patent/consultation_en.htm

Pa ElGrande · 19-01-2006 11:57pm

Cristian Miceli is an IT lawyer in the UK. This article is a roundup look at software patent issues in 2005. It addresses the question of whether software patents are beneficial or counterproductive. Its intended audience is other IT lawyers, but the rest of us can enjoy it too.

As an attorney, Miceli says he believes in intellectual property rights, and "as part of this, I see the benefits that patents can potentially bring in certain sectors. However, as one law professor recently commented, 'good policy does not just consist of "more rights"; it consists of maintaining a balance between the realm of property and the realm of the public domain'”.

read the article at
http://www.groklaw.net/article.php?story=20060115145429444

Pa ElGrande · 22-01-2006 1:33am

Industry joins in for new fight about software patents
Saturday, January 2006
by Stefan Krempl

http://www.heise.de/english/newsticker/news/68626

Proponents for a broadening of industrial property rights in the computer sector have declared a new round in the fight about software patents in the EU opened. "It starts again", announced Günther Schmalz, head of SAP's software department, according to the Intellectial Property Watch online service by mid of last week on the Digital Europe meeting of the neoliberal US-american Progress & Freedom Foundation (PFF) in Prague. At the same time, the patent proponent expressed hope that his camp will be better prepared this time than during the last struggle. A "brigde position" must be reached, which both sides could live with.

Midyear 2005 the software patent lobby met their Waterloo when the highly controversial EU directive about patents on "computerimplemented inventions" was buried. This was due to the better lobbying of the opposition, said the SAP manager. They met the members of the EU parliament far more often and hit the parliament's nerve with their demonstrations. Schmalz complained further that industrie's representatives have been threatened personally by software patent opponents in the dispute's zenith in early summer of 2005.

According to the PFF's conference blog Schmalz justifies SAP's commitment for a EU-wide regulation with SAP seeing patents as the only way to ensure returns on its development investment. Copyright is no solution, he continues, as the actual writing of code only makes up about 20% of the development of software. "Those who drive innovation need patents", Schmalz stresses. "Those who don't imitate." This proposition resembles a statement of SAP head Shai Agassi. Not long ago, he characterized the camp of open source developers, which strongly oppose software patents, as only being minimal innovative but dangerous for the proprietary development of computer programs.

Background for the increasing efforts around software patents are probes the EU commission started by the beginning of this week about patent politics. On the one hand, they use the planned community patent as a starting point to harmonize the exceeding patent practice of the European Patent Office, which interpreted the legal framework extensively during the last years to apply approximately 30.000 patents on software. On the other hand, the commission wants to redefine their complete patent strategy.

Meir Pugatch from the University of Haifa now gave the industry lobbyists reason to hope that their new attempt to exceed patent application rules might have more chances to succeed. The activists of the opposition, who argue for limitations in intellectual property rights, would only live for a tangible campaign, their movement would come undone afterwards. Contrary, large companies had long-lasting strategies and would see temporarily failures only as a minor step backwards in a long fight.

The Czech Ministry of Informatics, Dana Berova, also assumes that the debate about software patents will "last for years". Her country would appreciate a corresponding directive, she said. No big changes to national legislation would be needed. Stephen McGibbon, patent expert at Microsoft Europe, additionally embraced that the EU commissar for the European Single Market,Charlie McCreevy, continues to push legislative initiatives for software patents and sees them as "fundamental" for productivity and competition.

Observers don't save side blows on the arguments of the industrie's patent proponents: SAP once used to be an innovative company with technical development being the reason to leave competitors behind, says Technology Liberation Front online journal. Now, they are "overweight, lazy, and established" and "discover the joy of using the patent legislation against their more innovative competitors". Richard Stallman, doyen of the Free Software Foundation, already announced strong resistance against the community patent directive in its current shape. The democratic decision of the EU parliament must not be circumvented through the back door, he says. (Stefan Krempl) / (Thanks to Dirk Hillbrecht for the translation of the German news article.) / (jk/c't)

I am pondering the question, how much of McCreevy's ideas are influenced by large American Multinationals?

maidhc · 23-01-2006 11:20am

Pa ElGrande wrote:

I am pondering the question, how much of McCreevy's ideas are influenced by large American Multinationals?

The idea of a community wide patent is surely a good idea, what I don't understand is why *must* software patents be part of it?

BUT
As a very very part time web applications developer I can see the logic in PPFs statement that "Copyright is no solution, he continues, as the actual writing of code only makes up about 20% of the development of software". However this is the same mentality that patents business methods and everything else you can think of, and is quite simply dangerous when you consider most software borrows ideas readily from competitors.

Perhaps the solution is to largely abolish copyright as it applies to software, and allow a limited patent. It would require those seeking protection to submit detailed instructions of their "invention" and source code, and would last for (say) 5 years. At least then perhaps the community could actually benefit from other inventions in the same way as they benefited from those of James Cyril Bamford (of the JCB), Harry Ferguson (Interesting patent case there actually), Alexander Graham Bell, etc. As of now the public (other than those who infringe the GPL) has not benefited from software copyright. Giving 70 years + protection to something with a shelf life of 5 is obscene.

Whatever happens, surely even the most ardent free marketeer sees the difficulties that patents have given rise to in the US. It don't see how it helps innovation when certain companies can wait for a particular technology be a success before asserting their IP as has happened for RIM, Microsoft and Apple.

ambro25 · 16-02-2006 5:04pm

maidhc wrote:

The idea of a community wide patent is surely a good idea, what I don't understand is why *must* software patents be part of it?

Because it's a technology, just like others (mechnical, biological, physics, etc, etc.)?

maidhc wrote:

Whatever happens, surely even the most ardent free marketeer sees the difficulties that patents have given rise to in the US. It don't see how it helps innovation when certain companies can wait for a particular technology be a success before asserting their IP as has happened for RIM, Microsoft and Apple.

You are assuming IP litigation Europe follows the same dynamics as in the US. That is a HUGE (and wrong) assumption.

You will find that M$ (and others) doesn't 'assert' its IP when it's found a tech to be a success. It buys the IP for itself instead at the onset of the success. No different from me spotting the Next Best Mouse Trap™ from a private inventor in his shed, assigning his IP to me, patenting it myself and marketing it for €millions to B&Q and consorts

How many times... :rolleyes: Software patents under a Directive or any other form of Legal instrument would be no different from current practice - that's just what the Directive was trying to achieve: codify current practice so that there's a bit more clarity & certainty about it (that has been going for 3 decades or so) to assuage non-EU software investors, who to this day still do not 'commit' heavily to Europe because software patenting is such a 'dark art'

And, in passing, I can garantee you that there's no such thing as a European business method patent, either - from memory and a recent presentation in Dublin by the boss of the software patent Examination dept of the EPO, something like 30,000 such applications in the last 10 years or so, nicely following the Internet bubble curve over time, with... 10 or so granted.

rogue-entity · 17-02-2006 1:12am

If, God forbid, Software Patents become legalised within the EU, and by extension Ireland, it will have devastating consequences for the Open Source Community. It is no secret that Microsoft wants to illegalise OSS which it sees as a threat to its software revenues.
By preventing Software patents from being legalised we can insure that whenever a company produces a nice little proggie but decides to charge an extortionate price for it *cough* Adobe *cough* some bright spark in the OSS community will develop a free or cheaply priced alternative that will ensure vital competition and keep the mainstream prices of proprietary software down. And also insuring that those with the technical expertise can impliament OSS derived solutions with no cost compared to a propriatary solution form a large software vendor. E.G. A certain school that I know uses SuSE Linux for its servers. They have one server that handles File Shares, WWW, Mail, DNS, Routing and Content Filtering. Another handles Student Domain logins and student file storage. This costs them nothing to run compared with the expense of using a Windwoes server and 50 odd CALs.

Another reason to ban software patents is to ensure interoperability and prevention of Vendor Lock-in. E.G OpenOffice which is free can read and write to microsofts proprietary formats so people do not need to spend $$$ for Office.

DO NOT LEGALISE SOFTWARE PATENTS!

ambro25 · 17-02-2006 10:05am

rogue-entity wrote:

If, God forbid, Software Patents become legalised within the EU, and by extension Ireland, it will have devastating consequences for the Open Source Community.

There's no such thing as a 'legalised' patent. There's a granted Patent, be it an Irish Patent or a European Patent validated in Ireland.

And there are a lot of Irish &/or European software patents already granted (and validated in Ireland) - have been for a fair few years, not to say decades.

Where's OSS being stymied in Europe then?

rogue-entity wrote:

It is no secret that Microsoft wants to illegalise OSS which it sees as a threat to its software revenues.

As ever, source please?

rogue-entity wrote:

By preventing Software patents from being legalised we can insure that whenever a company produces a nice little proggie but decides to charge an extortionate price for it *cough* Adobe *cough* some bright spark in the OSS community will develop a free or cheaply priced alternative that will ensure vital competition and keep the mainstream prices of proprietary software down.

You won't 'prevent' it. It's already here, has been for years. And I would have thought what keeps the price down is demand being met by supply - extortionate prices don't attract custom unless you're in a total monopoly situation: patents, in the software field, do not ever confer a monopoly of such an extent, because it's algos that are patented and can usually always be tweakd outside a patent, bar extremely rare situations, in extremely-specialist fields: and if your business is active in that extremely specialist field or you have created it out of thin air with an invention, then fair is fair I'm afraid - you deserve a patent for it.

SW patent have never resulted in such a monopoly as a total monopoly on any data processing technology and -from the size of the prior art growing exponentially in the field- never will.

rogue-entity wrote:

And also insuring that those with the technical expertise can impliament OSS derived solutions with no cost compared to a propriatary solution form a large software vendor. E.G. A certain school that I know uses SuSE Linux for its servers. They have one server that handles File Shares, WWW, Mail, DNS, Routing and Content Filtering. Another handles Student Domain logins and student file storage. This costs them nothing to run compared with the expense of using a Windwoes server and 50 odd CALs.

From an end-user point of view (such as described by you above), using OSS over proprietary is a business decision, which has nothing to do whatsoever with patents. Would this certain school choose DELL over HP for its servers because DELL has less 'hardware' patents? :rolleyes:

rogue-entity wrote:

Another reason to ban software patents is to ensure interoperability and prevention of Vendor Lock-in. E.G OpenOffice which is free can read and write to microsofts proprietary formats so people do not need to spend $$$ for Office.

Interoperability provisions were rolled into the Directive - you should read it before whinging about it. Oh, and where's the M$ lawsuit against the creators/distributors of Open Office?

@ Pa El Grande - good linkie & article by Chritian what-his-name...with very many gaping holes in his case, not the least of which is the fact that -say- suppressing software patents altogether, and therefore relying only on copyright in respect of infringements, would in effect vastly increase any Court prosecution costs (to his benefit, as a solicitor) and make enforcement of IPRs all the more unlikely (particularly for SMEs). That's because unlike patents, you first have to prove (i) that copyright exists and (ii) that you own it in a Court of Law, before (iii) being able to assert it. That's just a droplet of a precision in an ocean of worthwile arguments for both 'sides'.

As an aside - those 'USPTO 1994' quotes in the article are quite a load of b@ll@cks and the opinion of one employee of Autodesk. I can vouch from personal experience that back then, just like today, their Patent filing program (quite well marketed internally) is motivated by 3 main factors: ensure what their employees create belongs to and stays with them, increase the overall intrinsic value of the company by doing so, and prepare/create new market positions.

As for SMEs, more software patents are filed by SMEs in Europe than by 'large' ICT businesses. Note that I'm not saying more are granted.

Reasons are very numerous,

from the coercive: e.g. VCs want to make sure that they're not financing the next eBay or Paypal and lose out on their returns because that said next eBay or Paypal didn't bother to lock the IPR down - so get patents or don't get investment;

to the business-based: eBay or M$ will want this, if I don't have a patent for it (i) they'll not talk to me (ii) they'll just mod the code and get away with copyright infringement (oh yes they will - so do thousands of other SMEs btw, not necessarily 'big names' - just track down Navitaire vs Easyjet in the UK and see how far copyright takes you to protect software these days).

Software patents loom large again ??

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