FFII Software Patent News 2003

see also Software Patents: News and Chronology
2004 August 24th
The report, apparently written by the Department of Trade and Industry together with scholars from UK universities, compares the innovative capacity of the UK to that of other countries and measures this capacity by some indirect indicators, among which the number of patents has particular weight. There a few examples pulled out from the software industry, and they do seem throughout to be rather gripped by a "must maximise the number of patents being achieved" and "we must teach SMEs to make better use of the patent system" mentality. The report also mentions a set of 7 committees called "Innovation and Growth teams" set up to advise the Govt sector by sector on innovation. The one on "Software and digital content" has not yet reported, though all but one of the others now have.
2004 August 24th
An editorial of the US magazine BusinessWeek reports that a group of "left-leaning politicians" and "open-source advocates" by "last-minute lobbying" "upended" a directive proposal in such a way that it actually "bans software patents", thereby creating an "industry-specific exemption" which violates the TRIPs treaty amd "erases billions in intellectual property granted by the EPO". The author gives Europe a lot of advice, demanding that Europe should set an example by finding a formula that "spurs innovation while safeguarding intellectual property". The article contains various contradictions and false assertions. Jim Bessen (innovation economics researcher at MIT) and others have written letters to the editor.
2004 August 24th
A fledgling software company is claiming ownership to all algorithms that can be used for modifying contents in write-once-only media by appending to the end, including those laid down in industry standards. The patent would be grantable under the European Commission's directive proposal but not under that of the European Parliament.
2003 December 11st
In an interview with the Washington Post, Intel Chaiman Andrew S. Grove says that the USA "needs to revamp not just the patent system, but the entire system of intellectual property law. ... It needs to redefine it for an era that is the information age as compared to the industrial age."
2004 August 24th
A study written at the order of Microsoft by the Muenster University Institute for Computational Economics (MICE) says that every Microsoft job in Germany creates about 7 non-Microsoft jobs in the downstream industry and that software patents are good. The reasoning is very similar and no more sophisticated than that of the BSA studies which the European Commission and the US Trade Representative cite in favor of their software patentability proposal: proprietary software directly remunerates those who write programs, and it does this by means of "intellectual property", of which patents are one important kind.
2003 December 9th
Microsoft has published licensing terms for a series of patents which cover the FAT file format. These license terms exclude free software such as the GNU/Linux operating system. Several of the patents on which Microsoft's terms are based have also been granted by the European Patent Office. However under the European Patent Convention, as confirmed by the recent vote of the European Parliament, these patents are invalid. Moreover, the European Parliament's Art 6a assures that the use of a patented technique for the purpose of interoperation is not a patent infringement.
2004 August 24th
At its recent conference, the youth wing of the UK Liberal Democrats has passed a resolution which criticizes the Libdem members of the European Parliament (MEPs) for voting in favour of software patents. The UK Libdems in teh European Parliament, led by Diana Wallis and Andrew Duff, had had followed the recommendations of Arlene McCarthy (MEP, UK Labour) and the UK Patent Office, therebey taking an extreme pro-patent line within the European Liberals, thereby ignoring the party's written policy documents as well as their own lip-service paid to these documents before the vote. The Libdem Youth calls on the Libdem MEPs to follow the party's line before the second reading in the European Parliament.
2004 August 24th
The chairman of CECUA.org (Confederation of European Computer User Associations), Alain Moscowitz, has presented a paper which pleads in favor of patentability of software, including business methods, at a dinner organised by the "European Internet Foundation", an organisation financed by large IT companies for the purpose of wining-and-dining members of the European Parliament. Among the MEPs most active in EIF include Arlene McCarthy, Jannelly Fourtou, Erika Mann and Elly Plooij-Van-Gorsel, all of whom campaigned and voted for unlimited patentability in September, whereas some of them had taken the opposite view before. The behaviour of Mr. Moscowitz is even more surprising, because some of the associations which he claims to represents have expressed contrary positions and 290,000 computer users have signed a petition which demands the contrary of what Moscowitz is demanding.
2003 December 2nd
Computerworld.dk has an article titled "Open source destroys danish innovation" which reports about "3 innovative danish SMEs" who went to see the government to complain about the European Parliament's amendments to the directive, saying that the EP made it impossible for them to protect their intellectual property. This was echoed by a FUD campaign of major danish IT associations, similar in tone to the Computerworld article. Preliminary research shows that the SMEs in question are all close allies or subsidiaries of Microsoft. None has publicly pointed to any case studies to demonstrate a legitimate need of their business for any kinds of software patents. Like the 5 Telecom CEOs, they have shunned public discourse and relied solely on secretive lobbying.
2004 August 24th
The European Commission is proposing new rules about when patent licensing and other technology-transfer agreements should and should not be allowed by competition law. The new law would concentrate on the actual effect of the agreement entered into, rather than its form.
2004 August 24th
The software patent directive will be discussed by the European Council's Patent Policy Working Party (governmental patent experts) in the first half year of 2004 and there will be pressures to produce a counter-proposal to the European Parliament's amendments by May 2004 and to have an inofficial consensus document at the patent expert level in March before the formal meeting of the heads of governments which will take place on March 25-26th.
2004 August 24th
A US court in San Francisco has condemned Microsoft Corporation to a payment of 62 million US dollars for using "whiteboards" in its video conferencing software "Netmeeting". This feature had been patented by the plaintiff Imagexpo LLC, a daughter company of SPX.
2003 November 27th
EICTA, a lobbying group representing most large telecommunication and consumer electronics companies in Europe as well as some SMEs has published a press release which literally echoes the letter signed by CEOs of Nokia, Ericsson, Alcatel, Philips and Siemens earlier this month, complaining about the European Parliament's amendments to the proposed software patent directive and asking the Commission and the Council to undo these amendments and immediately go on a confrontation course with the Parliament. The Council did not follow this call during its meeting of today but postponed the debate to next spring, when the Irish presidency takes over. EICTA expresses dismay at this postponement and directs demands of "the industry" to the Irish presidency as well as to the Belgian government. The latter demands are based on the false claim that the Belgian EICTA member organisation AGORIA represents Belgian SMEs.
2003 November 21st
AT&T has sued PayPal and eBay for infringing on patent US5329589. This is a patent on, among other things, performing online credit card transactions with the help of a credit card processor. This patent has also already been granted in Europe as EP0501697
2004 August 24th
According to observers of yesterday's meeting Software Patent Directive appears not on the agenda for the Competitiveness Council next week. That means that it will not be possible to transmit anything to the European Parliament for a second reading this session. There simply isn't time. The Italian presidency feels it has taken this dossier as far as it can, and it will now fall to the Irish to produce the Council's Common Position during its six month term in the first half of next year. That means that the Council's Common Position will be transmitted to the next Parliament.
2004 August 24th
In a report "Preparation for the Competitiveness Council meeting on 26 and 27 November 2003", appearing as item 17 in part II of the agenda (page 4), there is, amongst other topics "subitem 5Proposal for a directive of the European Parliament and of the Council on the patentability of computer-implemented inventions" with with two patent-lobby documents cited for reference: the original CEC proposal from last year, and the "progress report" holding document from 13 November. Presumably, a significant factor in the Coreper discussion will be how the Working Party meeting yesterday turned out. It may well be that the worst possible document was unanimously agreed at the Working Party yesterday, and that it is going to be given to the Ministers to rubber-stamp.
2004 August 24th
In circles close to the European Commission's industrial property unit and the Council patent working party, documents have recently circulated which criticse the European Parliament's amendments and give reasons for their rejection. Governmental patent lawyers are trying to kill the Parliament's amendments with technicalities. We have started working on a document which comments on this reasoning, paragraph by paragraph.
2004 August 24th
Currently several patents are pending at the EPO on coding methods for using special characters (e.g. accented European characters) in internet domain names. One such pantent was granted but withdrawn, others are under application.
2004 August 24th
It was reported today at the end of the French Council of Ministers that the French governement will propose to his european partners a delay before the Council's final decision of its stance, in order to do another internal consultation.
2004 August 24th
Microsoft Coroporation has published a set of XML-based definitions of office formats used in applications such as MS Word, MS Excel, MS Powerpoint etc. These come together with a set of conditions of use of these formats which are imposed with help of unnamed patents on these formats: "Microsoft may have patents and/or patent applications that are necessary for you to license in order to make, sell, or distribute software programs that read or write files that comply with the Microsoft specifications for the Office Schemas." It is known that Microsoft has been applying for patents at the European Patent Office (EPO) which cover current or possible future MS Office formats.
2003 November 7th
The chief executive officers of Alcatel, Ericsson, Nokia and Siemens have signed a letter to the European Commission and the European Council which complains about the European Parliament's amendments to the proposed software patent directive, saying that these will effectively remove the value of most of the patents of their companies and thereby harm the competitiveness of Europe's industry and violate the TRIPs treaty. FFII points out that the Directive indeed threatens the interests of the patent departments of such companies, but not of the companies themselves: The letter is characterised by untruthful dogmatic assertions which say much about the thinking of patent departments and little about the interests of their companies, many of whose employees, especially software developers, support the positions of FFII.
2004 August 24th
On 27 November 2003 the European Parliament's Committees for Industry and Legal Affairs will hold a joint meeting to hear a presentation by Ingo KOBER, President of the European Patent Office, on the mission and functions of EPO.
2003 November 6th
Marshall Phelps, the new "IP leader" at Microsoft who came over from the IBM patent department, hints in an interview that MS may be getting more aggressive on lobbying for software patents in Europe: "We'll focus on Europe that bit more...I don't think we joined the debate [on software patents in Europe] in the right way." This article is an essential reading to include/understand what Microsoft intends to do with its 3000 software patents and 5114 software patent applications. It also informs their strategy of lobbying on the software patentability in Europe.
2003 November 5th
The EU's press page has the text of a speech make by Bolkestein at the weekend, which nicely captures his world view. The overall argument is revealing -- do what I say, or all the jobs go to Turkey, China and India. He cites the Community patent, the biotech directive, recognition of professional qualifications, and the take-over bids directive, criticising Member States for holding up progress. To deal with this, he urges his audience of businessmen to step up their lobbying efforts: "Fifth, there is a crucial role for business. Let me ask you a few questions. How many of you as business leaders are personally involved in the public affairs side of your companies? How many of you have entered political debates (e.g. by writing articles for newspapers"? How many of you are lobbying behind the scenes to get key proposals adopted? You need to be doing all these things.)
2003 November 4th
WIPO has just published a 377 page brochure, "Intellectual Property - A Power Tool for Economic Growth", aimed at policy-makers in businesses and governments worldwide, and as the preface puts it, "written from a definite perspective -- that IP is good".
2004 August 24th
Ein US-Gericht hat entschieden, dass sich US-Patent 5,191,573 der Firma Sightsound auch auf bezahltes Herunterladen von Musik im Internet erstreckt. Damit verlor die Bertelsmann-Tochter CDNow eine Runde im Rechtsstreit.
2004 August 24th
Die Gesellschaft für Informatik wählt in kürze ihren neuen Vorstand. Einige Mitglieder haben die Kandidaten gebeten, zum Thema Softwarepatente Stellung zu nehmen.
2004 August 24th
The Federal Trade Commission of the USA has published a summary report, based on findings which it gathered from extensive hearings. FTC sees grave problems with the patent system. The report says that extending this system to software and business methods in the 1980/90s was a mistake, but stops short of proposing to reverse this decision. Instead it proposes a series of procedural reforms.
2004 August 24th
A note was prepared for Coreper 1 by the General Secretariat of the Consilum on 28th October, discussing the procedure for the examination of the amendments proposed by the EP.
2003 October 23rd
Since the European Parliament voted for clear exclusion of software from patentability in september 2003, the patent movement has been fighting back through the EU Council. A EU directive can only become law if Council and Parliament agree. The position of the Council will be prepared by a workgroup of national patent officials on thursday 2003-10-23 in Brussels. At the meeting, the European Commission's patent officials may propose to disregard the European Parliament's amendments and go back to earlier texts from the Commission's and the Council's patent officials which allow unlimited patentability. The UK government, whose patent policy is determined by its Patent Office, is expected to push for this option.
2003 October 1st
At the Hearing of the Petition Committee in the Parliament yesterday evening at 18:00, Anthony Howard, a former employee of the UK Patent Office who is handling the Software Patent Directive Project for DG Internal Market under Frits Bolkestein at the European Commission, asked the Parliament to discard the two petitions against software patents, signed by a quarter million european citizens, which were presented to it. Very few MEPs attended the evening session, and among those who attended were prominent software patentability advocates from the Legal Affairs Commission (JURI) who vocally supported Howard's call. However the Petition Committee did not follow their requests. Acceptance of the petition will mean that the Legal Affairs Commission, which voted against meaningful limits on patentability in June 2003 and was overruled by the plenary vote on 24th of September, will receive another opportunity to explain its position.
2003 September 29th
Last Wednesday the Parliament voted against software patents and for freedom of publication, freedom of interoperation and other basic values of the information society, thereby reversing the thrust of a directive proposal from the European Commission, so as to basically satisfy the demands of a quarter million signatories of the "Eurolinux Petition for a Software Patent Free Europe" and 30 eminent computer scientists. The initiators of both petitions will speak before the European Parliament's Petition Committee on tuesday 18.00 to express their thanks and explore with MEPs what still needs to be done.
2003 September 24th
In its plenary vote on the 24th of September, the European Parliament approved the proposed directive on "patentability of computer-implemented inventions" with amendments that clearly restate the non-patentability of programming and business logic, and uphold freedom of publication and interoperation.
2003 September 22nd
The two chief architects of the Linus operating system kernel, Linus Torvalds from Finland and Alan Cox from UK, ask for effective limitations to patentability in their letter to the members of the European Parliament. In particular, they recommend MEPs to follow the FFII voting list. The vote on the Directive will be on Wednesday and it is expected to be a very close one.
2004 August 24th
The shadow rapporteur of the European People's Party, Dr. Joachim Wuermeling from Bavaria, has come under pressure. An international group of 32 EPP members, headed by Piia-Noora Kauppi from Finland, has submitted their own amendment proposals which effectively exclude software and business method patents from patentability and safeguard basic freedoms of competition, publication etc. Many EPP colleagues have started studying them on their own, without relying on their shadow rapporteur. At the same time, a demonstration is taking place in Munich today in protest of Wuermeling's policies. To this Wuermeling has reacted with a PR and a set of amendments. Both pay lipservice to the concerns of "open source companies and small developpers", but, upon close reading, only consist of redundant rhetoric which confirms the Trilateral Standard of the US, Japanese and European Patent Office of 2000, under which algorithms and business methods such as Amazon One Click Shopping are without doubt patentable subject matter. More important than these PRs and articles is the question of whether Wuermeling will support Kauppi's amendments in his voting list next week. These actually implement the goals to which Wuermling is paying lipservice.
2003 September 19th
Members from all groups of the European Parliament have submitted a total of 120 amendment proposals to the software patent directive draft. Virtually all proposals show an intention of wanting to avoid software patents or limit their scope and effects. Some amendments serve the professed aim while others do not. None can achieve the aim on their own, embedded in a long directive text which codifies unlimited patentability with many redundant safeguards. We are working on a tabular overview and analysis of all amendments. The European Parliament is scheduled to decide about the Software Patent Directive on September 23rd. The directive as proposed by the European Commission demolishes the basic structure of the current law (Art 52 of the European Patent Convention) and replaces it by the Trilateral Standard worked out by US, European and Japanese Patent Offices in 2000, according to which all "computer-implemented" problem solutions are patentable inventions. Some members of the Parliament have proposed amendments which aim to uphold the stricter invention concept of the European Patent Convention, whereas others push for unlimited patentability according to the Trilateral Standard, albeit in a restrictive rhetorical clothing. We attempt a comparative analysis of all proposed amendments, so as to help decisionmakers recognise whether they are voting for real or fake limits on patentability.
2004 August 24th
Jean-Pierre Courniou, directeur R&D de Renault et président du "Club Informatique des Grandes Entreprises Françaises" (CIGREF) a fait un discours sur les politiques actuelles en matière de technologies de l'information dans lequel il souligna que les brevets logiciels sont une source de grand danger et résuma:
Pour moi et le CIGREF, la réponse est "non, nous ne voulons pas de la brevetabilité"
2004 August 24th
An alliance representing a total of 2,000,000 small and medium-sized businesses in Europe says that software patents are harmful for SMEs and that in particular the software patent directive proposal as amended by the European Parliament's Legal Affairs Commission is a grave risk for innovation, productivity and employment in Europe.
2004 August 24th
What FFII had to report in 2003 about broad property claims on inventions and their abusive extension to computer-aided reasoning, calculating, organising and formulating.
2003 September 15th
The Proposal for a software patent directive, which will be submitted to the European Parliament for decision on September 24th, is giving rise to yet another wave of protests. These include a conference in Brussels on Wednesday September 17th, a rally in Strasbourg on Tuesday September 23nd, as well as a series of "satellite demos" in other cities of Europe. These actions will be accompanied by an Internet Strike on the 17th and 23rd. At a comparable action on Aug 27, 500 demonstrators came to Brussels and 3000 websites went on strike.
2004 August 24th
In response to the wave of protests against the proposed software patent directive COM(2002)92 2002/0047 in late August 2003, the European Parliament's rapporteur for this directive, Arlene McCarthy MEP, has published a "Factsheet" which attempts to explain that she has been a victim of a "misinformation campaign" and is in reality championning the protesters' cause. We republish the paper with comments here.
2004 August 24th
The UK Government's Foreign Office is circulating a "briefing to UK MEPs", in which it instructs british members of the European Parliament to back Arlene McCarthy's position and vote (1) against any attempt to define what is technical or otherwise limit what is patentable (2) against Article 6a which allows converters to be written when standards are patented (3) for JURI Art 5 which forbids publication of descriptions of patented inventions on the Net. The intervention of the government comes at a moment where McCarthy has shown nervous reactions in view of dwindling support in her party group. The government statement can be attributed to the UK Patent Office and its policy working group, consisting mainly of patent lawyers from large corporations. This group has been determining the software patent policy of the UK and largely also of the EU during recent years.
2003 September 1st
In response to last week's wave of protests against her software patent directive proposal, Arlene McCarthy MEP, rapporteur of the European Parliament for the EU Software Patent Directive Proposal, has circulated a press release which "hits out against claims made by opponents to the new EU law". McCarthy, speaking in the name of UK Labour and partially of the parliament as a whole, calls on fellow MEPs to "back EU plans for patents for inventions" later this month, warning them not to be misled by a "dishonest and unconstructive campaign", "orchestrated" by a group of "lobbyists", who are "bullying" parliamentary staff and "putting at risk jobs in the growing software industry".
2003 September 1st
On Aug 28th, the European Parliament postponed its vote on the proposed EU Software Patent Directive. The day before, approximately 500 persons had gathered for a rally beside the Parliament in Brussels, accompanied by an online demonstration involving more than 2000 websites. The events in and near the Parliament were reported extensively covered in the media, including tv and radio, all over Europe and beyond. Within a few days, the petition calling the European Parliament to reject software patentability accumulated 50,000 new signatures.
2003 August 25th
This last appeal was sent by FFII/Eurolinux to all Members of the Euroepan Parliament (MEPs) by E-Mail and Fax.
2003 August 20th
On September 1st, the plenary of the European Parliament will decide about a law proposal which would establish software patents in Europe. A group of economists from Europe and US specialising in patent questions have published a letter to members of the European Parliament calling them to reject the proposal, accompanied by an analytical paper which casts severe doubts on the reasoning behind the directive and on the methods employed by its proponents.
2003 August 19th
The Proposal for a software patent directive, which will be submitted to the European Parliament for plenary debate and subsequent decision on September 1st, is giving rise to another wave of protests. Various groups in Belgium and elsewhere are mobilising for a rally in Brussels on August 27th and are calling on web administrators to temporarily block their web sites.
2003 August 18th
The European Patent Office (EPO) in Munich has recently granted a patent to Amazon which covers all computerised methods of automatically delivering a gift to a third party. This patent is a descendant of the famous "Amazon One Click Patent" granted in the USA, but with a broader claim scope than the original US version. In 2001 the original Amazon Patent Application was withdrawn and replaced with two new applications, of which one has meanwhile been granted while the other is still pending. The Munich-based Foundation for a Free Information Infrastructure (FFII) found these facts during routine research for a documentation named "Why Amazon One-Click Shopping is Patentable under the Proposed EU Software Patent Directive". The documentation shows that the EPO has created its own rules to systematically grant thousands of US-style patents on algorithms and business methods, and that the proposed EU Software Patent Directive on which the European Parliament is scheduled to vote on September 1st would impose exactly these EPO rules on Europe's national courts. Yet even the FFII appeared surprised to find that the EPO granted Amazon a patent of this breadth.
2003 August 17th
The German chapter of the globalisation-critical organisation ATTAC has published a letter to members of the European Parliaments and press release.
2003 August 16th
The presiding judge of the Patent Senate of the Federal Court of Justice, Dr. Klaus Melullis, analyses the legal and political situation concerning software patents and concludes that the European Commission's directive proposal "with its by-and-large affirmation of software patentability does not fit into the system of the EPC", and that the legislator has so far failed to assess the concerned interests and to clarify the basis of his decision. The FFII has reviewed one of several recent articles of judge Klaus J. Melullis. Unfortunately the German government is not listening to the opinions of judge Melullis and his colleagues. For them only the views of IBM's corporate patent department count as the real evangile of patent law. At the EU level, the german government's ministry of justice is continuing to pressure the Commission and the European Parliament to suppress the last remnants of freedom of publication (Art 4) and freedom of interoperation (Art 6a) from the directive proposal.
2003 August 13rd
The Paris-based Organisation of Economic Cooperation and Development (OECD) is working on a project to study the impact of patents, copyright and other exclusion rights on innovation and economic performance. A two-day conference is to be held where Hartmut Pilch of FFII/Eurolinux is participating in a panel on software.
2003 August 13rd
The EU patent movement, led by Frits Bolkestein's DG Internal Market, met near Napoli (Naples) on October 5-7, discussing among themselves and with EU politicians from the Italian Presidency, the Commission and the Parliament subjects such as the limits of patentability. FFII/Eurolinux was excluded from participation, letters asking to be invited to panels not answered. Many panels had economic subjects, but the expertise came from patent lawyers only, not from economists.
2003 August 13rd
Spiegel, german weekly magazine, reports that a music notation method has been patetned.
2003 August 13rd
Patent Claims to "computer program, characterised by that upon loading it into memory [ some process ] is executed", are called "program claims", "Beauregard claims", "In-re-Lowry-Claims", "program product claims", "text claims" or "information claims". Patents which contain these claims are sometimes called "text patents" or "information patents". Such patents no longer monopolise a physical object but a description of such an object. Whether this should be allowed is one of the controversial questions in the struggle about the proposed EU Software Patent Directive. We try to explain how this debate emerged and what is really at stake.
2003 August 13rd
A group of activists from Linux user groups in Greece has built a website to campaign against the planned legalisation of software patents in Europe.
2003 August 12nd
The Californian university spin-off Eolas succeded in extracting .5 bn USD rents from Microsoft using patent US5838906. This Eolas patent covers, as an Illinois jury confirmed, Microsoft's ActiveX facility. It also covers basically any means to extend a browser by scripts. Eolas lawyers try to create the impression that Microsoft actually copied their "technology" and that their latest rent-seeking aims at restoring justice in the browser war, where Microsoft leveraged its monopoly position to put Netscape out of business in 1999. Some media seem to be buying their story.
2003 August 1st
The EU software patent directive is a "wolf in a sheep's coat". We have documented in detail what misleading terms such as "technical contribution" really mean.
2003 July 27th
Bill Gates warned at an investors' conference in his typical cryptic way that Linux will have difficulty to survive in the age of patents: "Here you have a product without R&D controls, and it's not part of a cross-license," he said. "Given the high level of functionality, you'd think it would have patents." "Companies that are doing R&D have by and large entered into cross-licensing agreements," he said. "Microsoft and IBM did cross-licensing 10 years ago, when we were small. But Linux is not covered by most of these cross-licenses." "The whole IP thing is begging to get attention because it's not a scenario that existed in the past," Gates noted. "The SCO suit is largely related to trademark and copyright." "However, Gates said intellectual property from SCO and other companies--including Microsoft--has found its way into the code." "There's no question that in cloning activities, IP from many, many companies, including Microsoft, is being used in open-source software," Gates said. "CEO Steve Ballmer, also on hand to answer questions at the meeting, said customers and partners are confused about the impact of the IP issues related to Linux." Some news reporters such as Heise may be counted among the confused. They took Microsoft's "IP" talk to mean that "Linux contains Microsoft code". Upon careful reading it becomes clear that Gates meant "Linux uses ideas which Microsoft has patented".
2003 July 22nd
The third edition of the renowned computing quarterly CEPIS Upgrade contains several articles and the text of the "Petition of 30 Scientists". The table of contents says:
Why software should be within the scope of copyright law, and not patent law. Pierre Haren opens this section with some brief notes on his opinion on software patents, "A Note on Software Patents".

Alberto Bercovitz Rodríguez-Cano offers a transcript of his "On the Patentability of Inventions Involving Computer Programmes", which he delivered at a hearing held at the European Parliament.

Roberto Di Cosmo "Legal Tools to Protect SoftwareChoosing the Right One", an article studying the different legal tools to deal with software.

Closing this section, we include "Petition to the European Parliament", written by several well-known European computer scientists and engineers, related to the proposed Directive on software patents currently being discussed at the European Parliament.

2003 July 18th
Collaborative filtering, best known in the form of "People who liked/bought this also liked/bought that", is widely used in the e-commerce world. Pinpoint Incorporated, a patent litigation startup company whose activity has so far been confined to the US, holds several US patents on the use of collaborative filtering for different purposes. On July 18th 2003, Pinpoint filed a lawsuit against Amazon.com, alleging violation of several of its patents.
2003 July 12nd
The Municipality of Porto in Portugal is conducting a hearing on July 15th about the possible effects of the proposed European Software Patent Directive on companies and citizens in Portugal. The hearing is chaired by Ilda Figueiredo, member of the European Parliament.
2003 June 26th
The European Parliament has postponed the vote on the software patent directive back to the original date of 1st of September, thereby rejecting initially successful efforts of its rapporteur Arlene McCarthy (UK Labour MEP of Manchester) and her supporters to rush to vote on June 30th, a mere twelve days after publication of the highly controversial report and ten days after the unexpected change of schedule.
2003 June 22nd
A "Petition for a Free Europe without Software Patents" has gained more than 150000 signatures. Among the supporters are more than 2000 company owners and chief executives and 25000 developpers and engineers from all sectors of the European information and telecommunication industries, as well as more than 2000 scientists and 180 lawyers. Companies like Siemens, IBM, Alcatel and Nokia lead the list of those whose researchers and developpers want to protect programming freedom and copyright property against what they see as a "patent landgrab". Currently the patent policy of many of these companies is still dominated by their patent departments. These have intensively lobbied the European Parliament to support a proposal to allow patentability of "computer-implemented inventions" (recent patent newspeak term which usually refers to software in the context of patent claims, i.e. algorithms and business methods framed in terms of generic computing equipment), which the rapporteur, UK Labour MEP Arlene McCarthy, backed by "patent experts" from the socialist and conservative blocks, is trying to rush through the European Parliament on June 30, just 13 days after she had won the vote in the Legal Affairs Committe (JURI).
2003 June 20th
Due to requests from the Socialist Group (PSE) of JURI rapporteur Arlene McCarthy, the European Parliament protracted the planned vote on software patentabilty from September 1 to July 1, just 13 days after McCarthy won the vote in the Legal Affairs Committee (JURI).
2003 June 17th
The European Parliament's Committee for Legal Affairs and the Internal Market (JURI) voted on tuesday morning about a list of proposed amendments to the planned software patent directive. It was the third and last in a series of committee votes, whose results will be presented to the plenary in early september. The other two commissions (CULT, ITRE) had opted to more or less clearly exclude software patents. The JURI rapporteur Arlene McCarthy MEP (UK socialist) also claimed to be aiming for a "restrictive harmonisation of the status quo" and "exclusion of software as such, algorithms and business methods from patentability". Yet McCarthy presented a voting list to fellow MEPs which, upon closer look, turns ideas like "Amazon One-Click Shopping" into patentable inventions. McCarthy and her followers rejected all amendment proposals that try to define central terms such as "technical" or "invention", while supporting some proposals which reinforce the patentability of software, e.g. by making publication of software a direct patent infringment, by stating that "computer-implemented inventions by their very nature belong to a field of technology", or by inserting new economic rationales ("self-evident" need for Europeans to rely on "patent protection" in view of "the present trend for traditional manufacturing industry to shift their operations to low-cost economies outside the European Union") into the recitals. Most of McCarthy's proposals found a conservative-socialist 2/3 majority (20 of 30 MEPs), whereas most of the proposals from the other committees (CULT = Culture, ITRE = Industry) were rejected. Study reports commissioned by the Parliament and other EU institutions were disregarded or misquoted, as some of their authors point out (see below). A few socialists and conservatives voted together with Greens and Left in favor of real limits on patentability (such as the CULT opinion, based on traditional definitions, that "data processing is not a field of technology" and that technical invention is about "use of controllable forces of nature"), but they were overruled by the two largest blocks. Most MEPs simply followed the voting lists of their "patent experts", such as Arlene McCarthy (UK) for the Socialists (PSE) and shadow rapporteur Dr. Joachim Wuermeling (DE) for the Conservatives (EPP). Both McCarthy and Wuermeling have closely followed the advice of the directive proponents from the European Patent Office (EPO) and the European Commission's Industrial Property Unit (CEC-Indprop, represented by former UK Patent Office employee Anthony Howard) and declined all offers of dialog with software professionals and academia ever since they were nominated rapporteurs in May 2002.
2003 June 19th
The Legal Affairs Commission of the European Parliament discussed rapporteur Arlene McCarthy's draft report. Our analysis of the draft had been handed in printing to all 70 JURI members beforehand. FFII/Eurolinux sees this report as piece of legalese junk, written from a US large corporate patent department's perspective, characterised by unusually frivolous tactics of confusion and deception. Few attended and only a handful of JURI MEPs spoke at the meeting. The atmosphere seemed harmonious and supportive. Mild criticism about the lack of clarity in McCarthy's draft was uttered by MacCormick (Greens), Gebhard (ESP) and Wuermeling (EPP).
2003 June 16th
Jean-Michel Yolin, president of the "Innovation" section in the French Ministery of Economics and author of the report IE, observes in an interview about the SCO vs IBM/Linux case:
Patents once served to make research and development efforts pay off. Meanwhile, instead of serving innovation, the patent system has been twisted to become a means of mining the territory and neutralising unwanted innovators by sending them lawyers to screw them up at a moment where they are raising funds or acquiring customers.
2003 June 14th
Arlene McCarthy, Member of the European Parliament for UK labour and rapporteur of the JURI committeee for the software patent directive proposal, has for the first time directly answered arguments from critics in a letter to the british newspaper The Guardian. Yet the basic questions, e.g. what should be patentable and how McCarthy's proposals achieve this, remain unanswered. McCarthy reiterates demagogic statements of whose untruth she is well-informed and even resorts to lies in the strictest sense of the term, such as saying that she introduced a provision to allow decompilation. McCarthy moreover attacks the GNU General Public License in an apparent effort to shift focus to unrelated subjects and incite flamewars with the free software community. We analyse McCarthy's fallacies and the political context of her letter.
2003 June 10th
Hartmut Pilch of FFII writes publicly to Arlene McCarthy, citing an algorithm claim and a business method claim, both of which have been granted by the European Patent Office (EPO) against the letter and spirit of the European Patent Convention, and both of which have US cousins which have already caused considerable damage. Some of Arlene McCarthy's public statements seem to exclude patents on algorithms and business methods while others seem to make such patents unavoidable. Arlene McCarthy should explain this contradiction in unambiguous terms, based on example patents. Arlene McCarthy did not answer. The closest to an answer was a statement in JURI on June 16:
We have attemted to set some limits in perhaps a moderately restrictive way, without entirely reinventing patent law, which I would hasten to add, we are not in ability to do that, we are legislators to create framework and laws for interpretation by experts, but we are not experts ourselves.
2003 June 10th
Xavier Drudis Ferran from Catalan Linux Users Group (CALIU) informs Arlene McCarthy MEP of his analysis of the FAQ which she had distributed to the participants of the FFII/Eurolinux conference in the Dorint Hotel in Brussels on 03/05/07-8, points out some fallacies in this document and invites McCarthy to engage in the dialogue about whose absence she has been complaining to journalists. This letter remains unanswered.
2003 May 12nd
In 2003 on May 7-8 the Greens/EFA and FFII/Eurolinux organised a public conference about the Software Patentability Directive Proposal for whose adoption by the European Parliament MEP Arlene McCarthy as a rapporteur has been pushing. The conference was convened on short notice but yet succeded in attracting more than 200 attendants, among which were many software developpers and business leaders. The Greens hat announced the conference through various channels, including posters in the European Parliament, since early April. FFII sent out some late mailings to MEPs with a detailed conference program. One of the recipients, MEP Arlene McCarthy, immediately complained about this mailing and said to journalists that Eurolinux was trying to exclude her, the rapporteur, from the discussion. She repeated this complaint at various occasions in and outside the parliament. We use this webspace to distribute McCarthy's messages to our participants and to document her complaints.
2003 April 25th
In a "Joint Statement of the Industry", directed to the Members of the European Parliament (MEPs), the presidents of various industry associations, including Graham Taylor from the "Open Forum Europe" as a representative of the Linux/Opensource world, asks the legislators to ensure
  1. that computer programs are treated as patentable inventions and
  2. programs are directly claimable, so that programmers can be sued for publishing a program.
Moreover, as means of "protecting opensource software", the signatories ask the European Parliament to ensure that
  1. whenever an interface is patented, interoperable software may not be published or used without a license
  2. business methods are patentable "only" to the extent that a computer or some other device is involved
  3. the European Commission shall publish more papers (obituaries?) about the effects of patents on SMEs.
This statement was sent to many MEPs, together with accompanying letters from the patent arms of national industry associations. Traditionally industry associations have left patent politics completely to corporate patent lawyers, who typically form each association's "industrial property committee". This committee's papers are usually signed by the president of the association without further consultation of other committees. Gentle doublespeak with an ungentle insider meaning, as explained above, is also part of the game. What is unusual about the current letter is that an apparent "opensource community leader" was enlisted for the maneuver.
2003 April 8th
What FFII had to report in 2003 about broad property claims on inventions and their abusive extension to computer-aided reasoning, calculating, organising and formulating.
2003 April 4th
Alexandre Dulaunoy from AEL (Belgian Association of Electronic Liberties) has gone through the somewhat cumbersome procedures at the European Parliament and received confirmation that the (Eurolinux Petition for a Software Patent Free Europe) with its 140,000 virtual signatures has been filed. Now the European Parliament' Petition Commission is entitled to take action in response to it. Contact persons are Alexandre for AEL and Hartmut Pilch for FFII.
2003 February 28th
The European Parliament may pass or reject the Software Patentability Directive Proposal of the European Commission immediately after plenary discussion on 2003-09-01. The most likely course is that it will propose amendments. Currently many members of the three concerned commissions (juri, itre, cult) have lost confidence in the Newspeak from the European Patent Office (EPO), in which the proposal is written. We are trying to keep track of the Parliament's schedule and to organise some complementary occasions for an informed discussion. In fact we want more than that: justice. The patent lobby has trampled on our rights without justification and is asking MEPs to perpetuate the injustice. We ask for a fair trial. Only the European Parliament can offer it.
2004 August 24th
On 2003/03/27, MEP Arlene McCarthy published an appeal which calls for signatures to a letter that links copyright infringement to terrorism and calls for strong sanctions against "any infringement of intellectual property".
2003 February 25th
The Legal Affairs Commission of the European Parliament discussed rapporteur Arlene McCarthy's draft report. Our analysis of the draft had been handed in printing to all 70 JURI members beforehand. FFII/Eurolinux sees this report as piece of legalese junk, written from a US large corporate patent department's perspective, characterised by unusually frivolous tactics of confusion and deception. Few attended and only a handful of JURI MEPs spoke at the meeting. The atmosphere seemed harmonious and supportive. Mild criticism about the lack of clarity in McCarthy's draft was uttered by MacCormick (Greens), Gebhard (ESP) and Wuermeling (EPP).
2004 August 24th
The European Council apparently no longer wants to "protect innovation", let alone stimulate innovation, but only to "protect patents". This is at least what a few bureaucrats at the March 20/21 Summit inserted into the final document. The ministerial officials of the European Council have in recent years been particularly responsive to interests of large corporate patent departments. At the request of the patent lobby, they proposed go a step further than the European Commission and make publication of program code on the web a direct patent infringement.
2003 February 19th
Arlene McCarthy, British Labor MEP appointed by the European Parliament's Committee for Legal Affairs and the Internal Market (JURI) to report on the European Commission's Software Patentability Directive Proposal (CEC/BSA Proposal), suggests that the European Parliament should enact the CEC/BSA version with additional safeguards to align Europe on the US practise and make sure that there can be no limit on patentability. McCarthy reiterates the CEC/BSA software patent advocacy and misrepresents the wide-spread criticism without citing any of it. Even economic and legal expertises ordered by the European Parliament and other critical opinions of EU institutions are not taken into account. McCarthy's economic argumentation consists of tautologies and unfounded assertions, such as that companies like Ericsson and Alcatel need software patents to finance their R&D, that SMEs need european software patents in order to compete in the USA, that patents are needed to keep developping countries at bay. McCarthy uses the term "computer-implemented inventions" as a synonym for "software innovations". These "by their very nature belong to a field of technology". McCarthy insists that "irreconcilable conflicts" with the EPO must be avoided. McCarthy says she wants to "set clear limits as to what is patentable" -- and that she wants to avoid the "sterile discussions" about "technical effects" and "exclusions from patentability". Yet her proposal stays confined to such discussions. McCarthy demands that all useful ideas, including algorithms and business methods, must be patentable as "computer-implemented inventions". McCarthy proposes to recognise the EPO as Europe's supreme patent legislator and to make decisions of a few influential people at the EPO irreversible and binding for all of Europe.
2003 February 16th
In February 2003 IBM Business Consulting Services B.V. completed a study on behalf of the European Commission which compares the role of major patent offices throughout the world in promoting the patent system and recommends:
We strongly recommended the structural incorporation of IPR education in the curriculum of technical schools and universities. The individual patent offices seem to have little influence in this regard and are likely to be treated with suspicion given the inherent conflict of interests. In our view, it would be more appropriate for the European Commission's Directorate-General for Education and Culture to initiate such a discussion on a pan-European level. Ideally, this would be supplemented at the national levels with initiatives by each EU Member State'scorresponding ministry and at the global level by UNESCO. Obviously, the patent offices should play an active role in curriculum development and its implementation.
2003 February 15th
We have analysed all patents ever granted by the EPO so far, selected those with a high likelihood of being software patents for more convenient browsing and prepared some statistics based thereon.
2003 January 21st
The Industry and Trade Commission (ITRE) of the European Parliament voted for amendments to the directive proposal that give freedom of publication and interoperability absolute priority over patents. EPP members (conservative, christian-democrat) proposed amendments in the opposite direction, i.e. for a wider scope of patentability and for treating publication as a direct infringment. These were rejected by the center-left majority.
2003 January 21st
The Cultural Affairs Commission of the European Parliament voted for amendments to the directive proposal that exclude software from patentability. On the one hand, "data processing is not a field of technology", on the other "technology" is positively defined as "controlling forces of nature to achieve a physical effect". These amendments were proposed by former french prime minister Michel Rocard and supported by all parties except for the largest, the European People's Party (EPP = conservatives and christian democrats), who, under the guidance of their shadow rapporteur Joachim Wuermeling and committee member Janelly Fourtou (wife of Vivendi president), voted against everything that limited patentability and even proposed amendments to enlarge patentability, which were voted down by the center-left majority.
© 2005/01/06 (2004/08/24) Workgroup
english version 2004/08/16 by Hartmut PILCH