|Reviews||Europarl 03-09-24||CEC/BSA 2002/02/20||DGMarkt Consultation 2000||Digital Dilemma 2000||Akte München 1973||BGH 1976 Disposition||EPO 00-05-19|
The basic question of whether computer programs (computer-implemented rules of organisation and calculation) are inventions in the sense of patent law (art 52 EPC) was not asked. Instead, the CEC Patent Unit implied that the answer must be yes. They talked about "computer-implemented inventions" and used this term as a synonym for "computer-implemented rules of calculation and organisation" rather than for true technical inventions which can be implemented under program control and whose patentability is beyond doubt. Thus the EU Industrial Property Unit not only implied an answer where it should have asked a question, but also falsely attributed silly positions to the software patent critics, before even opening the consultation.
The accompanying "independent study", written by some well-known EU software patent lobby activists, again reiterated the usuall patent lawyer credo in the guise of a somewhat more objective wording. This led the study to draw conclusions such as "any proposition to extend the patent system beyond the status quo cannot be claimed to rely on scientific evidence". In this context "status quo" refers to the practise of the European Patent Office's Technical Boards of Appeal. The study does not even consider the possibility of criticising that practise and returning to the European Patent Convention. Nor does it explain the concept of "technical invention", which is the underlying spirit of the European Patent Convention. Moreover the study predicts that software patents will gradually be accepted and used by the open source software community for its own benefit.
In spite of all this care taken to mobilise a network of patent professionals and create the impression of a pro-patent mainstream opinion, the results of the mobilisation campaign did not really look very convincing as a basis for arguing the case of software patentability.
While at the beginning, the CEC Indprop Unit (Industrial Property Unit in the General Directorate for the Internal Market of the Commission of the European Community) still wanted to quickly issue a directive and rallied national governments for this purpose, it gradually turned out that these governments were not very eager to go along. Also, the CEC Patent Unit itself apparently found that this consultation was not a good basis for their plans. They reported to the governments that the consultation result showed an "overwhelming vote of the concerned industries in favor of software patents" and only a minority, mainly from the "opensource movement", was clamoring against software patents. But they did were not eager to display the results of the consultation on their website, and it was very hard to press them to publish at least a small part of the submissions. Most submissions have not yet been published, often in spite of repeated requests by the authors to have them published, and those that have been published have been transformed to a PDF format that makes them hard to use in any hypertext-based dialogue.
Thus the work of evaluating the consultation has largely been left to private initiatives like ours. The CEC Patent Unit has however ordered a summary analysis from an "independent contractor", which has been available internally since April and was released to the public at the beginning of August, together with the installation of a web-based online discussion forum.
The report says that the anti software patent position is "radical" and would require "extensive negotiation". It is the first time we hear the majority of people in a debate called "radical" for defending the enforcement of current law. We wonder what negotiation would be necessary, but we doubt the purporse of the report was to assess the realisability of the participants' demands. We thought it was intended to summarize the opinions, proposals and demands of the participants, so that the interests at stake can be weighed more accurately.
The majority of responses fall into two distinct groups who hold substantially different viewsfails to note that one of these two groups is majoritary and the other isn't. We could also say that "the majority of opinions of people fall into two distinct groups, those who think that murder is wrong and those that don't". It's true, but it doesn't clarify anything. Most people think that murder is wrong. And we hope we're not looking for a compromise in that.
In 2.1.2 they say it's interesting to see that opponents to software patents use the term "software patent" and proponents use "computer implemented invention patent". It is not interesting once you realise that the few proponents are patent professionals and patent holders and the opponents are software developers, users or researchers. Little wonder that patent professionals are more used to the term invention and software engineers are more used to the word software rather than to euphemistic EPO slang.
This classification is quite irrelevant to the point of whether respondents supported or not extending the patentability to software, and apparently confuses the widespread and diverse opposition against software patentability (and for software copyright) with "open source" advocacy and even with paid lobbying, in an attempt to associate the opposition with a phenomenon regarded as minoritarian. On the other hand, the report fails to probe into the political background of the pro-patent group. This group apparently belongs to the same small stratum of people to which the organisers of the consultation themselves belong and which they tried mobilised by the very way in which they organised their consultation.
There are still more than 1300 unpublished statements, most of which probably belong to the last two categories and were initially published on the Eurolinux consultation site.