CEC/BSA

Introduction
Essence of the Proposal
Tabular text edition in BSA, CEC versions with counter-proposal in the spirit of the EPC
Questions, Things To Do, How you can Help
Annotated Links

A. Introduction

Introduction: Why all this fuss about software patents and the European Commission's proposal of 2002-02-20 to legalise patents on computer programs? How did BSA get in there?

B. Essence of the Proposal

Essence of the Proposal: The European Commission presents its proposal "on the patentability of computer-implemented inventions" as a moderate attempt to "harmonise the law" and clarify that recent american software patent excesses are kept out of Europe. Evidently the European Commission is well aware of what kind of proposal the public might want to see. Unfortunately it is proposing just the opposite in many ways. Here is a short summary of what the proposal actually does in the current european context.

C. Tabular text edition in BSA, CEC versions with counter-proposal in the spirit of the EPC

Here we are presenting a critical edition of the text, with annotation and a tabular comparison between the CEC/BSA initial and final draft and an added FFII version, which shows what is wrong with the CEC/BSA version and how it could be rewritten in a coherent and adequate way. We highlighted some differences by bold typeface.

BSA/CEC Advocative Preface
EU Software Patent Directive Amendment Proposals
Financial Statement
The Proposal
Footnotes

1. BSA/CEC Advocative Preface

BSA/CEC Advocative Preface: The European Commission's software patentability proposal of 2002-02-20 is based on a draft from the Business Software Alliance (BSA). Especially the advocative preface of this proposal contains arguments and materials that were supplied by the BSA. The argumentation tries to create a vague impression that "business software" or "packaged software" is related to patents, jobs, and wealth, and that purely copyright-based software is related to an "open-source movement" that wants everything in the world to be available for free. The argumentation is full of popular errors and lies, which are easily discovered by comparing it to our debugged version, listed on the right side of the table.

2. EU Software Patent Directive Amendment Proposals

EU Software Patent Directive Amendment Proposals: The European Commission proposed on 2002-02-20 to consider computer programs as patentable inventions and make it very difficult not to grant a patent on an algorithm or a business method that is claimed with the typical features of a computer program (e.g. operation of computer with "storage means", "output means" etc). We have worked out a counter-proposal that upholds the freedom of computer-aided reasoning, calculating, organising and formulating and the copyright property of software authors while supporting the patentability of technical inventions (problem solutions involving forces of nature) according to the differentiations explained in the European Patent Convention (EPC), the TRIPs treaty and the classical patent law literature. This counter-proposal is receiving support from numerous prominent players in the fields of software, economics, politics and law.

3. Financial Statement

Financial Statement: The BSA version of the European Commission's Software Patentability Directive Proposal of 2002-02-20 contains an estimate of what the implementation of the proposal might cost. Apparently there is no cost at all.

4. The Proposal

The Proposal: Advocative Postface, BSA only

5. Footnotes

Footnotes: Footnotes in the BSA version and the European Commission's version of the EU software patentability directive proposal of 2002-02-20

D. Questions, Things To Do, How you can Help

see FFII/Eurolinux 2003/04 Letter to Software Creators and Users

E. Annotated Links

JURI working documents: Working documents of the Legal Affairs Commission of the European Parliament about the CEC/BSA software patentability proposal of 2002-02-20, published 2002-06-19, inititially consisting of a short report by MEP Arlene McCarthy and a study ordered by the European Commission.
Europarl Hearing of 2002-05-15: A group of members of the European Parliament invited Anthony Howard (who is in charge of the software patentability directive at the European Commission's Industrial Property Unit) and Hartmut Pilch from FFII/Eurolinux for a public hearing in Strasbourg. Here you find the details of the conference as well as some presentation slides.
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.
Slashdot: Directive Proposal is Unclear: A controversial debate between two people about the directive proposal and the FFII criticism. The "anonymous coward" is Erik Josefsson from SSLUG, his opponent is a patent lawyer from Philips who maintains a website which argues in favor of the EPO's recent interpretation of the EPC (and thus basically also of the directive proposal).
(All French Presidential Candidates against Swpat): The top candidates of all french parties have expressed themselves clearly and even fervently against software patents. Each candidate seems happy to find that his particular political thinking can serve as a good basis for explaining why software patents are bad.
UK Patent Orifice: Software Patentability Rally Brussels 2002-06-19: The UK Patent Office, wearing the hat of the British Government, has entrusted one of its subcontractors to organise a high profile rally in support of the proposed CEC/BSA software patentability directive. Speeches will be held by hard core patent movement activists from the European Commission, the UK Government, the European Patent Office, the IBM patent department and some well-known patent law firms. At the end of an intensive 6 hour long software patentablity propaganda firework a podium discussion will be held in which an "open source representative" will be allowed to sit at the table. The organisers' initial choice was Alan Cox. Alan has occasionally expressed deep concern about the software patent problem but, as a core developper of the Linux kernel and other key projects, he never really had the time to study the legal intricacies. This fact alongside with his long hair and beard seemed to make him particularly qualified for the role of the social romantic dissident, generously tolerated by a group of patent lawyers posing as the businessmen of the real software industry. Alan immediately understood the game and declined the invitation, handing the case over to the Eurolinux Alliance. We have meanwhile been put on the conference program, but our abstract was doctored, our criticism suppressed, our message distorted, so that now we nevertheless fit into the design of this rally.
Lenz 2002-03-01: Sinking the Software Patent Proposal: Karl-Friedrich Lenz, professor of European Law, lists some legal and constitutional arguments to explain why the CEC/BSA proposal is a legal and political scandal, starting from the fact that the European Commission is using "harmonisation" and "clarification" merely as pretexts to declare itself competent for promoting an unspeakable political agenda which does not fall in the Commission's competentce.
see also Bundesregierung verklagt Brüssel wegen Kompetenzerschleichung unter dem Vorwand der %(q:Binnenmarkt-Harmonisierung)
LiVe 2002-02-28: Scandalous push for unlimited patentability: press release of Linux-Verband, an association of Linux companies and users in Germany
BSA Europe - Press Release - BSA Responds to EU Software Patent Directive Adoption: Mingorance denies our allegations that he wrote the proposal, arguing that he would have written the "form of claims" section differently. We think that the decision to not follow the EPO on the claim form question was indeed taken by the CEC. We do not doubt that the CEC played an important role in shaping the proposal. But so did Mingorance.
(Goltzsch 2002-02-20: Kommission sagt, der BSA-Entwurf stamme aus der Industrie): An journalist reports that he just phonecalled the European Commission to find out whether the BSA version that Eurolinux proposed was really the version that the CEC was going to publish that day. He was told by the Commission's press speaker that the version which Eurolinux published was not theirs but one "from the industry". Several French journalists who called on the same morning received the same answer. One even received the answer "no, that draft is not from us but from BSA".
ZDNet News: Row erupts over European patent plan: A fairly comprehensive account of the BSA/CEC proposal scandal
FAQ
Eurolinux 2002-02-20: Collusion Discovered between BSA and Euorpean Commission: Eurolinux Press Release
CEC Press Release inconsistent with CEC/BSA directive content: Eurolinux Warning to journalists issued on 2002-02-20 shortly after publication of CEC/BSA directive proposal
Robin Webb (UK PTO & Gov't) 2002-02-20: proposes to remove all limits to patentability and to rewrite Art 52 EPC so as to reflect EPO practise: The UK PTO conducted its own consultation, which showed an overwhelming wish of software professionals to be free of software patents. But the UK PTO, speaking in the name of the UK government, reinterprets this as a legitimation to remove all limits on patentability by modifying Art 52 EPC at the Diplomatic Conference in June 2002. The proposal has one argument going for it: while rendering Art 52 meaningless, it at least brings clarity. It describes in fairly straightforward (and yet still sufficiently deceptive) terms what the EPO is doing and what the patent movement wants. This paper was presented by the UKTPO on the same day as the EU-BSA Directive Proposal. The UKPTO had held a parallel consultation exercise in Great Britain. Its exercise ignored public opinion using the same double-talk about "technical contribution" and by selective choice of examples made sure that this talk is misunderstood by the public. Yet the UKPTO has shown the Commission that even massive fraud and theft of intellectual property with with a further legal effect, jointly committed by the EPO, the CEC and the UKPTO against the european software industry and the european public, can be carried out in a graceful and mannered fashion.
L'innovation logicielle remise en cause par la Commission européenne: French news report saying that the CEC proposal fails to bring any clarity to the debate
Une directive contre le logiciel européen: Joint statement of the European shareware associations condemning the directive proposal as a hostile act against the creators of software in Europe
Ilka Schröder: Patentüberwachung: German MEP of GUE/NGL strongly warning against Copylock (EuroDMCA) and Swpat Directives
European Commission will propose to replace clear limits on patentability with empty words: The Eurolinux Alliance of software companies and non-profit associations has been informed by reliable sources that the European Commission (EC) will publish within a few days a draft proposal for a European Community Directive on the limits of patentability with regard to computer programs. Most programmers want not patents but only copyright to apply to software. Evidence from economic studies suggests that software patents stifle innovation and reduce productivity. The EC will pay verbal tribute to this reality in its press release. However, in its directive draft, the EC will propose to legalise US-style software patents in Europe and to remove all effective limits on patentability. With some reading skills in european patent lingo, you will easily notice this discrepancy. If you can afford 20 minutes, we will teach you the basics and introduce you to a debate, which is likely to stir unusual political passions at least for the next 1-2 years, as the directive draft attempts to pass through the European Parliament and the European Council.
Bernard Lang: The CEC/BSA Directive Proposal and the reactions: Pointers to more press reports, especially from France
Datamonitor 2000-09: Packaged Software Industry in Europe: A rarely cited and largely unknown study by a company called Datamonitor about the importance of proprietary software as a creator of jobs in Europe. The study claims that proprietary software will create 1/2 million new jobs in the next few years. Praises Ireland as a tiger state which is profiting from this job miracle thanks to its low tax rates. The original of this study seems to be inaccessible on the Net. Various summaries and references have been published on Microsoft's website in the context of Microsoft's lobbying work. In 2002 this study found its way into the advocacy preface of the European Commission's software patentability proposal. This was apparently due to the influence of BSA in the drafting work. The study does not deal with the subject of software patents. It correctly states that the biggest asset of software companies is their manpower, i.e. their ability to manage complex copyrighted works and quickly turn out nifty software rather than in their patents or their ability to invent a mousetrap.
Microsoft: The growth of the packaged software industry in Norway: An example of Microsoft's use of the Datamonitor Study for political persuasion efforts in Norway.
Quotations on Software Patents: Salient quotations from law texts, economic analyses, political documents as well as statements by programmers, politicians and other parties interested in the debate about software patents.
Research on the MacroEconomic Effects of Patents: We try to keep track of economic and other research on the effects of 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.
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.


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CEC & BSA 2002-02-20: proposal to make all useful ideas patentable