What is the effect of patents on the economy in general and on software in particular? Why do software patents tend to be so trivial? What exactly have the rules of patentability in Europe been and how did they change? Under what constraints is the patent system moving? What are our choices? With this collection of articles, members and friends of the FFII workgroup on software patents try to give answers.
Various governmental agencies have conducted consultations about the patentability of computer programs, but so far in most cases wrong questions were asked, leading to virtual debates and largely useless studies. We think that a serious debate should answer the following questions.
Patentjurisprudenz auf Schlitterkurs -- der Preis für die Demontage des Technikbegriffs
So far computer programs and other rules of organisation and calculation are not patentable inventions according to European law. This doesn't mean that a patentable manufacturing process may not be controlled by software. However the European Patent Office and some national courts have gradually blurred the formerly sharp boundary between material and immaterial innovation, thus risking to break the whole system and plunge it into a quagmire of arbitrariness, legal insecurity and dysfunctionality. This article offers an introduction and an overview of relevant research literature.
Regulation about the invention concept of the European patent system and its interpretation with special regard to programs for computers
We propose that the legislator draft any regulations on the question of software patentability along the lines of the following short and clear text.
L’Accord sur les ADPIC et les brevets logiciels
European patent authorities often cite the TRIPs treaty as a reason for making computer programs and business methods patentable and for making such patents enforcable in the most indecent ways. This reasoning is fallacious and easy to refute. It appears moreover that the European patent establishment itself is systematically violating the TRIPs treaty.
Warum sind Softwarepatente so trivial?
Die meisten Softwarepatente sind trivial und breit. Die Ursachen hierfür ist im Patentsystem selbst und nicht etwa in Unzulänglichkeiten bei der Patentprüfung zu suchen. Einerseits lässt das Erfordernis der Erfindungshöhe (Nichtnaheliegen) schwer fassen, und bisherige Versuche einer Formalisierung dieses Erfordernisses haben lediglich zu seiner tendenziellen Abschaffung beigetragen. Andererseits haben die Gerichte mit der Einführung von Softwarepatenten den Marsch in die totale Trivialität freigegeben, indem sie das einzige verbleibende Bollwerk niederrissen: das Erfordernis der Technizität.
Software Copyright Too Weak?
In a letter to the members of the European Parliament advocate Juergen Siepmann disproves attempts of some parlamentary "intellectual property experts" and industrial patent lawyers to badmouth copyright. He opposes their writings with german UrhG (copyright law), law commentaries and court decisions. The text is useable as introduction into the basics of software copyright.
FFII interests and the EU Software Patent Directive
What are the central freedom and exclusivity interests of software creators and users how do they translate into the language of the Software Patent Directive? What other interests exist? Where can space for meaningful negotiations be found?
Patentability Legislation Benchmarking Test Suite
In order to test a law proposal, we try it out on a set of sample innovations. Each innovation is described in terms of prior art, a technical contribution (invention) and a small set of claims. Assuming that the descriptions are correct, we then test our proposed legislation on them. The focus is on clarity and adequacy: does the proposed rule lead to a predictable verdict? Which of the claims, if any, will be accepted? Is this result what we want? We try out different law proposals for the same test series and see which scores best. Software professionals believe that you should "first fix the bugs, then release the code". Test suites are a common way of achieving this. Pursuant to Art 27 TRIPS, legislation belongs to a "field of technology" called "social engineering", doesn't it? Technology or not, it is time to approach legislation with the same methodological rigor that is applicable wherever bad design decisions can significantly affect people's lives.
Art 52 EPC: Interpretation and Revision
The limits of what is patentable which were laid down in the European Patent Convention of 1973 have been eroded over the years. Influential patent courts have interpreted Art 52 in a way that renders it obscure and meaningless. Not all courts have followed this interpretation, and numerous law scholars have shown why it is not permissible. The EPO had accepted the inconsistencies in anticipation of an expected change of law. However this expectation was frustrated in 2000 by the governments and in 2003 by the European Parliament. The Parliament voted for a clarification which gives Art 52 back its meaning. Meanwhile, proponents from all sides have proposed to modify Art 52(3) EPC in one or the other way, of course while claiming that this merely serves to "clarify the status quo" or to implement a directive which serves this purpose, and, since the European Commission and the Council have not signalled support for the Parliament's approach, there is still no common understanding of which "status quo" we are talking about.
Kollektive Schutzschilder gegen Softwarepatente?
Building a patent portfolio is hardly a realistic option for the self-defense of the free/opensource software community. However this community has a certain chance of leveraging prior art to its advantage, especially if it does this in a cost-efficient manner and realises the potential of legal insecurity inherent in the software patent system. So called Defensive Publishing, as has been proposed by initiatives like the Foresight Institute, however appears to be an incredibly silly approach. The most urgent task at this moment (spring 2001) is to time-stamp every CVS archive and every mailing list on which software ideas are developped.
Konzepte für Empirische Erhebungen
Some requirements for a study on economic effects of software patentability. Includes questionnaires which may used to find out what the European software industry and consumers may stand to gain or lose from software patents.
Software Patentability with Compensatory Regulation: a Cost Evaluation
Europe is preparing major changes in its patent system. The European Patent Office (EPO) has proposed to remove limitations on patentability, such as the exclusion of computer programs in Art. 52 of the European Patent Convention (EPC). A report by the French Academy of Technologies supports this proposal but suggests additional regulation measures in order to reduce potential abuses of software patents. In this article, we try to assess the costs of such compensatory regulation. They add up to an estimated 1-5 billion EUR per year for the European Union. Various regulation approaches and cheaper legislative approaches are compared in this article.
Drittes Paradigma: Maßgeschneidertes Software-Schutzrecht
A computer program is a linguistic work and a virtual machine at the same time. Neither copyright nor patent law were designed with computer programs in mind. Some scholars and politicians have therefore argued for a "Third Paradigm between patent and copyright law", also called specially tailored right or ius sui generis. Others have called abstract-logical ideas a "nobody's land of intellectual property" and demanded that it should be kept free of all property claims. Beside the granting of exclusion rights, there are other ways in which information innovation can be stimulated and rewarded.
Political Economy of the Patent System: the Mechanisms of Patent Inflation
During the last 200 years, the patent system has continually expanded. This expansion is not so much the result of conscious economic policy but rather to some automatic dynamics of political organisations, similar to monetary inflation or to the arms race. This article identifies several causes of patent inflation, traces their evolution and tries to look into the future.
Patents and Finances
As patents are increasingly being granted for methods of organisation and calculation (which may be described in terms of computer machinery but are nonetheless nothing but abstract principles), it becomes very difficult for tax inspectors to assess whether a patent is actually being used or not. Thus patents can be used to almost arbitrarily increase or decrease company assets and to create revenue streams from one corporate entity to another, preferably between affiliated companies or (overt or hidden) partner companies. In some countries, such as Ireland, patent license revenues are even exempt from taxation. In others, such as France, reduced tax rates apply. These possibilities are increasingly being used. They may also be coming into the reach of ordinary people who, by networking in a smart way, can shelter their money in safe distance from tax inspectors. Maybe we can put together a consulting work group that will help people realise this potential.
Structure and Interests of the Software Sector
Overview of current research on the persons working on creation of software independently or in companies of various sizes; their business models, interests, productivity, earnings, taxes, etc.
Was tun, wenn höchste Gerichte gegen Gesetz und Recht urteilen?
The German Patent Office is handing out patents on computer-implementable rules of organisation and calculation (programs for computers), although the written law, when understood either literally or by the only valid systematic interpretation, clearly disallows this. This illegal caselaw has been made possible by a series of decisions of the German Federal Court (BGH), which ovrerruled the Federal Patent Court (BPatG) in order to void the written law and replace it by new rules, which effectively remove all limits to patentability and all freedoms of programming. To reverse these court decisions, we need to ask clarification from the legislator and at the same time appeal to constitutional courts. Anonymous law experts give good advice.
Häufige Fragen und Populäre Irrtümer
The discussion on software patents in various forums on the Net keeps revolving around the same questions and errors. A systematic collection of answers is necessary.
Unwort des Jahres: %(q:Computer-Implementierte Erfindung)
Die Bundesbahn verkauft das "Produkt" Supersparpreis, die Telekom das "Produkt" GermanCall. Manche Informatiker ziehen das "Software-Engineering" dem Programmieren vor. Tonträgerverkäufer nennen sich "Musikindustrie". Ein Lehrerstreik heißt "industrial action". Schon seit einigen Jahren gibt es Bestrebungen, prestigeträchtige Begriffe wie "Industrie", "Technik", "Produkt", "Engineering" etc so auszuweiten, dass möglichst auch immaterielle Aspekte des Lebens zu geldträchtigen materiellen Waren geformt werden können. In ihrem Kampf um Patente auf Gensequenzen und Rechenregeln zeigen die Patentanwälte sprachlichen Innovationsgeist. In den letzten Jahren entstanden in kurzer Folge Neologismen wie "Computerprogramm nicht als solches sondern mit technischem Effekt", "programmtechnische Vorrichtung", "Computerprorgammprodukt", "Algorithmus mit physischen Bezugspunkten", "computer-implementierte Erfindung". Mit unklaren bis zu widersinnigen Begriffen beruhigen "Experten" die Gewissen verunsicherter Gesetzgeber. Insbesondere der Begriff "computer-implementierte Erfindung" hat seit seiner Einführung am Europäischen Patentamt im Mai 2000 seinen Weg in den amtlichen Sprachgebrauch und die politische Diskussion weit über die Kreise der Patentämter hinaus gebahnt. Er wurde verwendet, um das Europäische Parlament zu einer unehrenhaften Entscheidung zu verführen. Das Parlament widerstand jedoch den Irreführungen und Drohungen und stimmte für einschneidende Änderungsanträge, u.a. eine Umdefinition des Begriffs, die ihm die Zähne zieht. Die Irreführungen gehen jedoch auf Ebene des EU-Ministerrates weiter.
The patent system has created its own powerful quasi-religious movement, which is promoting and expanding it. The movement's members are united by a common faith in the beneficiality of "intellectual property", and equipped with rule-setting power in all important large organisations, including patent offices, patent courts, governments and large companies. Usually, CEOs and leading politicians don't have any opinion about patents and, when asked, are afraid of exposing their lack of expertise. Therefore they ask their patent department to speak on behalf of them, not noticing that the patent movement is pursuing its own agenda, which has very little in common with business or government interests.
Positionspapiere verschiedener Typen von Akteuren
Software patents seen from perspectives of trade unions, consumer organisations etc, provide possible models of argumentation for each.