Due to copyright restraints, we can not publish the whole article here.
Here are some quotes and rebuttals:
New technologies depend on innovative software developments, whether these be, for example, in the information, automobile, medical or industrial domains. An appropriate patent protection is essential. But if the new directive of the European Parliament becomes law, exactly this is endangered.
On Sepetember 24th, 2003, the European Parliament approved on its first reading the Directive on the Patentability of Computer-Implemented Inventions (software patents). If this directive were to take effect across the EU in this form, it would have catastrophic implications for both industry and the entire R&D community in Europe. It would essentially make it virtually impossible to obtain such a patent or to enforce patents of this type already granted. The term "computer-implemented invention" in this context is conceivably open to broad interpretation: it covers all inventions, the performance of which involves the use of a computer or other programmable apparatus.
The European Parliament's version does not make it impossible or difficult to obtain patents on "computer-implemented inventions". Rather, it defines the term "computer-implemented invention" more narrowly, so that "new technologies ... in the .. automobile, medical or industrial domains" are patentable, independently of whether they "depend on innovative software developments". According to the EP-amended directive, the work of the process engineer is patentable, but that of the programmer is not.
The result would be that more than 90% of all patents relating to information technology, telecommunications and consumer technologies would be invalidated without compensation. Many other areas would also be affected since there are very few inventions nowadays that can be executed without the use of computers. Some examples of technologies that would no longer be patentable include:
- software-assisted image capture, processing and representation -- an essential component of medical diagnosis
- data compression and data conversion techniques, such as MP3, which was awarded the German Prize for Technology and Innovation in the year 2000
- electronic control systems for injection processes in motor vehicles as well as brake control, stability control and navigation systems
- process automation or building management systems and power managment in power supply networks.
The European Parliament's directive indeed forbids patents on data processing rules, precisely because such rules can be applied to all engineering domains. But again in all engineering domains solutions that directly involve forces of nature (the work of the process engineer) remain patentable, and whether or not a computer is used is irrelevant to patentability.
In the future, R&D results in all these fields in Europe could be copied and imitated to a virtually unlimited extent.
Untrue.
Software is covered by copyright. Even when the source code is available, the imitator must spend nearly the same amount of man hours of skillful work as the first mover. In addition normally source code is neither available nor can any useful source code be obtained by decompilation.
Above all, this would affect European companies, who would no longer have any efficient protection mechanisms in their domestic markets, and who would be mercilessly exposed to product dumping from low-wage countries.
As explained above, efficient protection is available without patents. With software patents in place, European companies would face no less competition from low-wage countries. Siemens has been doing well at moving its R&D facilities to low-wage countries and "dumping" low-cost goods from those countries to Europe. Nothing helps against competition from a well-educated low-wage workforce.
And that's not all: in the medium term, there would also be serious implications for the European R&D community. If it is no longer worthwhile to run research and developmentin Europe because the results can no longer be protected, then this is bound to lead to offshoring to locations outside Europe.
Untrue.
Patents are used at the location of sale, not at the location of research.
Currently Siemens, SAP and many others are offshoring to locations such as India. One might assume that they are doing this because India has a tradition of skepticism toward the patent system and explicitely banning software patents. But it is more likely that the availability or not of patents at the site of R&D plays no role whatsoever.
How did a directive of this kind ever come into being? The original aim was to harmonize patent law for software inventions within Europe and to put a sto to a trend that originated in the USA of patenting mere business methods and non-technical software. After an intensive exploratory phase, the European Commission developped a well-balanced draft directive, which largely served to secure the status quo in Europe. It was essentially a compromise, on the one hand helping open source business models to flourish, while, on the other hand, also guaranteeing efficient protection of R&D results.
see CEC & BSA 2002-02-20: proposal to make all useful ideas patentable
"Balancing between R&D and open-source business models" was not an issue in the original draft, and there is nothing in the draft that is related to open-source business models, nor has this been a major subject in the "intensive exploratory phase" or at any time later.
Unfortunatley, certain interest groups then pushed this compromise towards a format that would allow R&D results to be used for free. This was combined with an attempt to stok up fears, e.g. by suggesting that the open source concept and the patent system are mutually incompatible.
Instead of naming the "interest groups" and pointing to their publications, Brandt makes up interest groups which don't exist or were never heard of during the debate. Clearly he finds it easier to refute the views of fictitious opponents than those of real ones.
[...] (More counter-arguments against fictitious arguments of the software patent critics. E.g. "opensource and the patent system have peacefully coexisted for a long time", "patents favor SMEs more than large companies", "trivial patents are no problem in Europe because they can always be invalidated in court".)
In all probability, the remaining stages of the European Union's legislative process will stretch into the autumn of 2004 In its current form, the directive one-sidedly reflects the interest of a few large software distributors, while ignoring the interests of universities, R&D institutions, innovative software developpers, small and medium-sized companies, and many of Europe's core industries. In the meantime, companies, organisations and associations are jointly attempting to prevent Europe sliding back to the level of a developping country in terms of its protection of intellectual property, while, ironically enough, other countries, such as the USA and China, are taking steps to provide improved safeguards for R&D results. Heinrich von Pierer has collaborated with the CEOs of Philipps, Alcatel, Ericsson and Nokia to submit a petition to the European Union, while countless associations ... have also swollen the ranks of protesters against this draft directive. Thus, the hope still exists that the directive may not take effect in its current form.
We do not know to which initiatives in "the USA and China" Brandt may be referring, but certainly not to the Federal Trade Commission's recent hearings and summary report on competition problems engendered by software patents.
The message is to continue R&D activities and continue to deliver reports of inventions, but it is important to also keep a careful and critical eye on this subject. Research and development are the only ways of ensuring that our company retains its technological edge in the future.
Dr. Kai Brandt
kai.brandt@siemens.com
With these final words Brandt implies that software patents and "research and development" are synonyms and that R&D must be kept up for the time being, because not all hope is lost yet. However Brandt stops short of revealing to his readers that these exhortations come from their patent lawyer. Indeed for the patent department at Siemens there is a real danger that the Parliament's directive could deal their organisation a severe blow and stop the continuous flow of "reports of inventions" from coming into their department. The fact that Brandt, contrary to normal practise of the magazine, does not disclose his membership in the patent department but rather poses as an R&D person, illustrates the tension that exists between the patent department and other departments at Siemens, which often perceive the patent department as a brake on their activities.
The message is to continue to keep an eye on the activities of the Siemens patent department. When it comes to their organisational survival, they are not picky about the means. They are writing FUD articles in internal journals at Siemens to mislead the employees of their own company, and they have probably done the same to their boss.
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