Swpat Conference Amsterdam 2002-08-30..1 (Columbanus Symposium)

What we would like the Conference to Focus on
Annotated Links

What we would like the Conference to Focus on

We particularly hope to discuss the FFII/Eurolinux EU directive counter-proposal, which has received broad support from politicians, vendors and associations. We think that the comparison of the CEC/BSA proposal with the FFII/Eurolinux counter-proposal shows most clearly what is at stake. In order to get a more intuitive grasp of what we are talking about, it would moreover be helpful to look at a few typical EPO-granted software and business method patents, try to classify them and look at the effects that different legislative proposals could have on them.

Currently the conference page points to many PDF and MSWord documents which are dead ends of discussions in many ways. MSWord documents can't even be displayed safely on non-microsoft systems, and PDF documents do not have the linking characteristics that make the WWW an exciting place. Moreover, many of the documents have a deeply political background and little if any scientific value. Some of the authors regularly shy away from public discussion and derive their authority from political backing rather than from an open process of peer review. Some of these studies are part of the problem rather than contributions to its solution. Below you find our account of the problems and solutions as well as critical reviews pages of various documents from the Columbanous background pages (which may have contributed either problems or solutions to the swpat debate).

Annotated Links

Columbanus Symposium: website of the organisers
Access to IVIR: From Schiphol Airport the easiest way to reach the Institute is to take the train to the Central Station from where you can take tram no. 4, 9, 16, 24, 25 or 20. From the Central Station it is the second stop which is in front of the Institute, Rokin 84
Guide to Amsterdam: practical information
DG IV Bakels 2002-06-19: The Patentability of Computer Programs: A study on software patentability which was commissioned by the European Parliament's Research Directorate as a reference for deliberations about the European Commission's proposal to make all useful ideas patentable. Unlike most other studies commissioned by EU institutions, this one does not seek to hide the problems with software patents and takes a refreshingly undogmatic look. Bakels finds that the proposed directive fails on all its proposed goals (clarification, harmonisation etc) and contains numerous inconsistencies. Concerning the impact of software patents, Bakels finds that "it is crucial to change the long-standing tradition of patents being granted for relatively simple inventions". Yet Bakels offers no hints as to how this long-standing problem can be solved and does not properly assess how some other possible filters such as concreteness and physical substance (technical character) or "invention character" (laid out in Art 52 EPC) relate to it.
CEC & BSA 2002-02-20: proposal to make all useful ideas patentable: The European Commission (CEC) proposes to legalise the granting of patents on computer programs as such in Europe and ensure that there is no longer any legal foundation for refusing american-style software and business method patents in Europe. "But wait a minute, the CEC doesn't say that in its press release!" you may think. Quite right! To find out what they are really saying, you need to read the proposal itself. But be careful, it is written in an esoteric Newspeak from the European Patent Office (EPO), in which normal words often mean quite the opposite of what you would expect. Also you may get stuck in a long and confusing advocacy preface, which mixes EPO slang with belief statements about the importance of patents and proprietary software, implicitely suggesting some kind of connection between the two. This text disregards the opinions of virtually all respected software developpers and economists, citing as its only source of information about the software reality two unpublished studies from BSA & friends (alliance for copyright enforcement dominated by Microsoft and other large US companies) about the importance of proprietary software. These studies do not even deal with patents! The advocacy text and the proposal itself were apparently drafted on behalf of the CEC by an employee of BSA. Below we cite the complete proposal, adding proofs for BSA's role as well as an analysis of the content, based on a tabular comparison of the BSA and CEC versions with a debugged version based on the European Patent Convention (EPC) and related doctrines as found in the EPO examination guidelines of 1978 and the caselaw of the time. This EPC version help you to appreciate the clarity and wisdom of the patentability rules in the currently valid law, which the CEC's patent lawyer friends have worked hard to deform during the last few years.
Software Patents: Questions, Analyses, Proposals: Wie wirkt das Patentsystem auf die Wirtschaft im allgemeinen und wie auf die Informationsökonomie im besonderen? Warum sind Softwarepatente so trivial? Wo liegen die Grenzen des Patentsystems, wie wurden sie früher formuliert und wie haben sie sich verschoben? Unter welchen Einschränkungen bewegt sich das Patentsystem? Welche Handlungsoptionen haben wir? Mit den hier gesammelten Artikeln wollen Mitglieder und Freunde des FFII Antworten geben.
Research on the MacroEconomic Effects of Patents: We try to keep track of economic and other research on the effects of patents.
Information Economy and Swpat Conference Paris 20020610-1: Institut Français des Relations Internationales (IFRI.org) and Center of Information Policy Research at Mariland University (CIP.umd.org) are organising a transatlantic conference on information economy and in particular on the limits of patentability as well as the problems in neighboring areas such as database exclusion rights and copyright. Hartmut Pilch is participating on behalf of FFII and Eurolinux on two of the panels.
http://kwiki.ffii.org/BmwiLuhog00En
Fraunhofer/MPI 2001: Economic/Legal Study about Software Patents: In 2001-01, the German Federal Ministery of Economy and Technology (BMWi) ordered a study on the economic effects of software patentability from well known think tanks with close affinity to the German patent establishment: the Fraunhofer Institute for Innovation Research (ISI.fhg.de), the Fraunhofer Patent Agency (PST.fhg.de) and the Max Planck Institute for Foreign and International Patent, Copyright and Competition Law (MPI = intellecprop.mpg.de). The study was largely concluded in 2001-06 and preliminary results were presented to a selected audience. The final report was published by the BMWi on 2001-11-15. The study is based on an opinion poll answered by several hundred software company representatives and independent software developpers, conducted by Fraunhofer ISI. Most respondents have had little experience with software patents and don't want software patents to become a daily reality like in the US. The poll also investigated the significance of open source software for these companies and found it to be of substantial importance as a common infrastructure. Based on these findings, the Fraunhofer authors predict that an increase in the use of software patents will put many software companies out of business and slow down innovation in the software field. The study then jumps to conclude that software patents must be legalised and SMEs must be better informed about them. This surprising conclusion is drawn by the patent law scholars from MPI. The MPI's legal study does not explore any ways to redraw the borders between patents and copyright but just takes the EPO and USPTO practise as an inevitable reality. They find that the EPO's caselaw is contradictory and chaotic and blame this on Art 52.2c EPC, which they say has failed to provide clear guidance and should therefore be deleted. Business related algorithms are, they say, less likely to be patented at the EPO than algorithms that "stand in a tradition of engineering". The MPI writers however do not try to provide a clear rule for distinguishing the two, and they oppose the idea of drawing a line between the physical and the logical ("technical inventions" vs "rules of organisation and calculation") as done by lawcourts in the 70s and 80s, asserting that information is also a physical phenomenon. They propose that all legislative power concerning the limits of patentability be handed over to the EPO, which should then, at its discretion and as far as Art 27 TRIPs allows, consult experts of interested parties for regular rewriting of its Examination Guidelines. Art 27 TRIPs demands that patents be "available in all fields of technology", and the MPI understands "technology" as "the useful arts" and is careful not to mention Kolle and other European theoreticians of the concept of technical invention. Summarily the study can be summarised as "Fraunhofer: software patents are unpopular in the software industry and dangerous to innovation and competition. MPI: Fine, so let's legalise them quickly."
European Consultation on the Patentability of Computer-Implemented Rules of Organisation and Calculation (= Programs for Computers): On 2000-10-19 the European Commission's Industrial Property Unit published a position paper which tries to describe a legal reasoning similar to that which the European Patent Office has during recent years been using to justify its practise of granting software patents against the letter and spirit of the written law, and called on companies and industry associations to comment on this reasoning. The consultation was evidently conceived as a mobilisation exercise for patent departments of major corporations and associations. The consultation paper itself stated the viewpoint of the European Patent Office and asked questions that could only be reasonably answered by patent lawyers. Moreover, it was accompanied by an "independent study", carried out under the order of the EC IndProp Unit by a well known patent movement think-tank, which basically stated the same viewpoint. Patent law experts of various associations and corporations responded, mostly by applauding the paper and explaining that patents are needed to stimulate innovation and to protect the interests of small and medium-size companies. However there were also quite a few associations, companies and more than 1000 individuals, mostly programmers, who expressed their opposition to the extension of patentability to the realm of software, business methods, intellectual methods and other immaterial products and processes. The EC IndProp Unit later failed to adequately publish the consultation results and moderate a discussion. Therefore we are doing this, and you can help us.


Software Patents > Events > 2002 > Amsterdam 020830
2002	Kiel 021126	EuroParl 0211	Amsterdam 020830	Brussels 20020619	Paris 020610	Linuxtag 0206	EuroParl 2002-05-15	Madrid 020506	EPC 20020610	GUUG 020301	CIP 020128